Appendix — Marathon Oil Co. v. Federal Energy Administration

Supreme Court brief1976

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13643-3.76

IN THE

Supreme Court of the United States

Octoper Term, 1975

No. 75— 1259 :

Maratuon Or Company, Petitioner

v.

FeperaL Enercy ADMINISTRATION; F'RanK G. Zarns, Admin-

istrator, Federal Energy Administration; and Asu-

LAND Orn JInc., Respondents

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE TEMPORARY EMERGENCY

COURT OF APPEALS OF THE UNITED STATES

Grorce Biow,

JOHN OBERDORFER,

JoHN Epwarp WILLIAMS,

1200 17th Street, N.W.

Washington, D.C. 20036

Kent B. Hampron

J. Furman Lewis,

MaratHon Or Company

539 South Main Street

Of Counsel, Findlay, Ohio 45840

Rautpx S. Spritzer, Attorneys for Petitioner,

3400 Chestnut Street Marathon Ou Company

Philadelphia, Pennsylvania

19174

— _ — —— ene,

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

gee a en nti o

“aa, jaw

2. OPE erg

ral

TABLE OF CONTENTS OF APPENDIX

Page

Per Curiam Order of the Temporary Emergency Court

GE BOUORED CHG. Bin DOGG! ccccccccccccscescess la

Order of TECA Staying Mandate (Feb. 27, 1976) .... 2a

Opinion and Grover of the District Court (Aug. 29,

1975)

Opinion of TECA Denying the Appeal from the Dis-

trict Court’s Denial of the Motion for Prelimi-

nary Injunction (Apr. 21, 1975) ................ ba

Memorandum and Order of District Court Denying

the Motion for Preliminary Injunction (Jan. 31,

SPUD 660-660 6905 babaecndendescerecdcncececeste 27a

a TIEROUE -6.6.i.0 cine cnecececacdesecedeesss 46a

Se Ge EE ic ccdccedn cdntecnesseeuecva 46a

SP Sey ID on 6-600:5.06.0660000600b0s'eee 48a

10 C.F.R. § 211.67 (Dec. 4, 1974) .........00.. 50a

Directive of January 10, 1975 ............4.. d7a

10 C.F.R. § 211.67, as amended by 39 Fed. Reg.

44710, 40 Fed. Reg. 6768, 10445, 13303, 14738,

DMT sac cdduns ghucedss veeesiesuneen 74a

Opinion of TECA in Cities Service Co. v. FEA, No.

DC-34 (TECA Dee. 31, 1975) .......ccscccvvees 83a

Order of TECA Denying Petition for Rehearing in

EL Bs EP onc becnne coneeedecsteseczsess 105a

Order of TECA Denying Suggestion for Rehearing En

Banc in TECA No. DC-34 .....ccecccevcvseces 106a

Opinion of TECA in Pasco, Inc. v. FEA, No. 10-7

gp 8 Be Pree eer 107a

TABLE OF CONTENTS OF APPENDIX

Per Curiam Order of the Temporary Emergency Court

of Appeals (Feb. 17, 1976) .......cccccsccseess la

Order of TECA Staying Mandate (Feb. 27, 1976) .... 2a

Opinion and Order of the District “ourt (Aug. 29,

Opinion of TECA Denying the Appeal from the Dis

trict Court’s Denial of the Motien for Prelimi-

nary Injunction (Apr. 21, 1975) ............8.. ba

Memorandum and Order of District Court Denying

the Motion for Preliminary Injunction (Jan. 31,

Ges as er ists oe el ee ae ea a 27a

I<" a el ee 46a

Sy Ge ee oe ee bee ee tOa

a rr ee ee eee ed tSa

10 C.F.R. § 211.67 (Dee. 4, 1974) .......... _, 5Oa

Directive of January 10, 1975 ..........00 0. ova

1O CLELR. § 211.67, as amended by 39 Fed. Reg.

$4710, 40 Fed. Reg, 6768, 10445, 13503, 14738,

a TE, . 04646506600600000buRE OD 74a

Opinion of TECA in Cities Service Co, v. FEA, No.

ok He, +) 2 | ree 83a

Order of TECA Denying Petition for Rehearing in

TECA No, DC-34 PTT TUT TCO TT CT eT 105a

Order of TECA Denying Suggestion for Rehearing En

Bane in TECA No. DC BE tad in 0 hee es een ee 106a

Opinion of TECA in Paseo, Inc. v. FEA, No. 10-7

ys oe BR 0 re Pe rere LO7a

la

APPENDIX

OPINIONS BELOW

TEMPORARY EMERGENCY COURT OF APPEALS

OF THE UNITED STATES

No. 6.10

Maratnon Ow Company, Plaintiff-A ppellant,

v.

FeveraL Enercy ADMINISTRATION, et al.,

ay, fe ndants Appe iia 4

(Finep Fesrvary 17, 1976)

Before Curistensen, Van Oosternour and ILAastinas,

Judges.

Per CURIAM,

Upon stipulation of the parties, briefiing and the filing

of the record on appeal in this case on September 18, 1975,

was stayed pending this court’s decisions in No, 10-7,

Paseo, Ine. v. FHA, and No, DC-34, Cities Services tom

pany, et al. v. FEA. The latter cases vave now been decided

by this court.

A motion to affirm has been filed by the appellees pur-

suant to TECA Rule 26, and within an extension of time

allowed by the court for this purpose,

Appellant’s opposition to this motion is based on the

contention that Pasco and Cittes Service Company were

improperly decided. The validity of these decisions will not

be re-examined here,

Cities Service Company, vy. FEA, 2

(ThCA Dee, ol, 1975) (petition for re hearme and SuyvYyCs

tion for rehearing en bane denied January 28, 1976), and

Pasco, Inc. v. FEA, 525 F.2d 1891 (TECA Oct, 14, 1975),

are dispositive as against all of the contentions of appel

lant.

Accordingly, the motion to affirm is hereby granted.

AFFIRMED.

Dated this 17th day of February, 1976.

2a

TEMPORARY EMERGENCY COURT OF APPEALS

OF THE UNITED STATES

Brerore Jvupces Curistensex, Van OosTeRHOUT AND

Hastinos

No. 6-10

Maratnon Or Company, Plaintiff-Appellant,

v.

FeveraL Enercy ApMINISTRATION, et al.,

Defendants-A ppellees,

and

AsuLaxn Ow, Ixc., Intervenor-A ppellee

and

INDEPENDENT Reriners ASsociaTiION OF AMERICA,

Amicus Curiae.

Upon consideration of Appellant’s Motion for Stay of

Mandate and Memorandum of Points and Authorities in

Support thereof,

Ir is oRDERED that said motion is GRANTED.

FOR THE COURT:

Ruru H. Jacosson

Clerk

/s/ by Donna M. Botp

Donna M. Bold

Chief Deputy Clerk

February 2/, 1976

+a

3a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

No. C 75-36

Maratuon Ow Company, Plaintiff,

Vs.

FreperaL Enercy ApMINistraTion, and Frank Zaxs,

Administrator, Defendants,

—and—

AsuLanp Om, Ixe., and INpereNDENT REFINERS

Association, Intervenors.

OPINION AND ORDER

WaALinskI, J:

Marathon Oil Company once again brings before this

Court the question of the federal government’s power to

regulate the petroleum industry and once again asks this

‘ourt to enjoin the Federal Energy Administration’s

‘*Mintitlements’’?’ Program. Specifically, this time Mara-

thon asks this Court, by way of a motion for a temporary

restraining order and preliminary injunction, to save

Marathon from having to make ‘‘entitlements’’ purchases

totalling $11.6 Million before August 31, 1975. For the

reasons which hereafter appear the Court has concluded

that such relief would not be appropriate and will deny

the motions.

Marathon initially brought this suit last January, 1975,

when the FEA’s entitlements, or Cost Equalization, pro-

gram was just aborning requesting the same kind of relief.

The Court then held a hearing, received evidence, and en-

tered Findings of Fact and Conelusions of Law which de-

nied any relief. The Court further declined to certify a

da

constitutional question to the Temporary Emergency

Court of Appeals. That Court turned aside an appeal,

holding that it did not then have jurisdiction to entertain

one,

Now it appears that the entitlements program may

come to an end, The Emergency Petroleum Allocation Act

of 1973, 15 U.S.C., § 751 ef seq., is due to expire on August

31, 1975. While Congress has passed an extension of the

Act, reports in the various media of the press indicate that

the President will veto the extension. Even as this is

being written, news reports continue so to proclaim while

also reporting that the Senate Majority Leader will today

call on the President to urge extending the Act. Intrepid

as reporters are, it is difficult now for this Court to con-

clude as a matter of fact and law that the Act will indeed

expire on Sunday on the basis of this ‘‘evidence.’’ How-

ever, in the interest of justice, the Court will so presume

and consider Marathon’s claims.

The Court will make the following factual findings, in-

corporating, insofar as they are applicable, the Findings

of Fact made by this Court on January 31, 1975:

The evidence shows that the entitlements pur-

chase requirements for /ugust are based on crude

oil refinery runs in June, 1975, thereby evidencing a

two-month lag between actual erude runs and en-

titlements purchases. 40 Fed. Reg. 36096 (Aug. 18,

1975).

Weighing the affdavits of Nicholson and Smith

offered in evidence by the parties, and received by

the Court, the facts are that Marathon has been able

to recoup nearly all of its past entitlements purchases.

According to the Nicholson statement, even at its

worst, Marathon has recovered at least two-thirds of

such costs by way of the pass-through provision.

Based on this evidence, the Court concludes as a fac-

da

tual matter that Marathon has not shown any irre-

parable injury.

Turning to legal conclusions, it is clear that Marathon

must show the presence of irreparable injury, the absence

of an adequate remedy at law, and the likelihood of suc-

cess on the merits. Beacon Theatres v. Westover, 359 U.S.

500, 506-07 (1959). Not only has Marathon failed to show

irreparable injury, but there is little or no likelihood of

success on the meriis in the opinion of this Court. Since

the January 3lst order, several other court have passed

on the same claims as Marathon has raised against this

same program and have decided them in favor of the gov-

ernment. See, e.g., Gulf Oil Corp. v. Federal Energy Ad-

min., 391 F. Supp. 858, 862-4 (W.D. Pa. 1975). Accordingly,

the Court will deny all injunctive relief.

Marathon also asks this Court to certify a substancial

constitutional question to the Court of Appeals. As in

January, the Court declines to do so. See cases cited

Order January 31, 1975, at pages 21-2.

Pursuant to Rule 65(a)(2), Federal Rules of Civil Pro-

cedure, trial on the merits is hereby consolidated with the

hearing on the motion for a preliminary injunction. The

motions for a temporary restraining order, for a prelim-

inary injunction, and for certification of the constitutional

question are denied. Final judgment shall be entered in

favor of defendants on all isues.

It Is So Ornperep.

/s/ Nicnoias J. WALINSKY

United States District Judge

6a

TEMPORARY EMERGENCY COURT OF APPEALS

OF THE UNITED STATES

Exxon CORPORATION, Plaintiff-A ppe llant,

Av Hoc Com™iTTert to Save Smauu ReErFiners,

Amicus Curiae.

v.

F'eperaL ENerGy ADMINISTRATION and Frank G. Zar.

De fe ndants-A pp lle PS

ASHLAND Orn, Inc... Interve nor-A ppellee,

and

INDEPENDENT Reriners AssociaTION or AMERICA,

Inte rvenor A ppe li é.

Appeal from the United States District Court

for the District of New Jersey

(No. Civ. 75-150)

No. 6-8

MaratHon Or Company, Plaintiff-A ppellant,

Av Hoc Comm™irtre To Save Smauut Reriners.

Amicus Curias

;

V J

FeperaL Exercy ADMINISTRATION and Frank G. Zarp,

Administrator. Di Te ndants A pp lhe es,

fand

ia

ASHLAND OIL, INc.. Inte rvenor A ppe llee .

and

INDEPENDENT Reriners AsSOCIATION OF AMERICA,

Inte rrenor A ppe lle Cc.

Lone Istanp Licutine Company, Pusuic Service Evectric

AND Gas Company, and Conso._ipaTep EKptson ComMPpANY

oF New York, Amicus Curiae.

Appeal from the United States District Court

for the Northern District of Ohio

(No. 75-36)

(F'rrep Apri 21, 1975)

Wittum H. Auuex, with whom John A. Hodges of Cov

ington & Burling and Robert L. Norris, Jr., were on

ihe brief for Plaintiff-Appellant Exxon Corporation.

Joseph A. Califano, Jr., with whom Jerry L. Shulman and

Peter B. Hamilton of Williams, Connolly & Califano

were on the brief as Amicus Curiae Ad Hoe (‘om-

mittee to Save Small Refiners.

Patricia N. Buiarre, Attorney, Dept. ef Justice, with whom

Carla A. Hills, Asst. Atty. Gen. and Stanley D. Rose,

Atty., Dept. of Justice were on the brief, for Defend-

ant-Appellees.

Frep W. Drocuna, with whom David Ginsburg and Peter

H. Rodgers of Ginsburg, Feldman and Bress; and

Arloe W. Mayne, of Counsel, were on the brief, for

Intervenor-Appellee Ashland Oil, Ine.

Edwin Jason Dryer for Intervenor-Appellee Independent

Refiners Association of America.

Sa

Grorce Brow, with whom Kent B. Hampton, Gen. Coun-

sel; John L. Oberdorfer, Gail F. Borden of Patton,

Boggs & Blow; and Ralph S. Spritzer, of Counsel,

were on the brief for Plaintiff-Appellant Marathon

Oil Company.

Josepn A. Catirano, Jr., with whom Jerry L. Shulman

and Peter B. Hamilton of Williams, Connolly & Cali-

fano were on the brief, as Amicus Curiae Ad Hoe

Committee to Save Small Refiners.

Patricia N. Buarr, Atty. Dept. of Justice, with whom

Carla A. Hills, Asst. Atty. Gen. and Stanley D. “ose,

Atty. Dept. of Justice, were on the brief for Defencd-

ants-Appellees.

Frep W. Drocuia, with whom David Ginsburg and Peter

H. Rodgers of Ginsburg, Feldman and Bress were on

the brief, for Intervenor-Appellee Ashland Oil, Ine.

Epwin Jason Dryer for Intervenor-Appellee Independent

Refiners Association of America.

John J. Adams, with whom Arnold H. Quint of Hunton,

Williams, Gay & Gibson, Washington, D.C.; George

C,. Freeman, Jr. and Allen C. Barringer of Hunton,

Williams, Gay & Gibson, Richmond, Va., were on the

brief, for Amicus Curiae Long Island Lighting Com-

pany, Public Service Electric and Gas Company and

Consolidated Edison Company of New York, Ine.

3efore: Hastre, Curistensen and Hastines, Judges.

Opinion for the Court filed by Judge Christensen.

Dissenting opinion filed by Judge Hastings.

CuristenstN, Judge: To reach the merits of these ap-

peals involving denial of applications for preliminary in-

junctions below, we again would have to surmount a juris-

9a

dictional obstacle already recognized with reference to the

absence of certification under 28 U.S.C, § 1292(b).’

Both of the above-entitled cases now before us involve

here the same jurisdictional problem and essentially the

same issues on the merits. Each appellant has asked us

to grant an injunction pending appeal—in the case of

Marathon ‘‘during the pendency of said appeal’’ and in the

ease of Exxon ‘‘ pending its appeal’’. Otherwise, there has

been filed directly with us no application for an injunc-

tion either preliminary or permanent, nor have the trial

courts certified here any constitutional issues or interlocu-

tory appeals.

Appellants are seeking to review orders of district

courts denying motions for preliminary injunction and to

certify a substantial constitutional question with refer-

ence to the ‘‘entitlement program’’ of the Federal Energy

Administration.’

The jurisdictional problem arises from § 211(d)(2) of

the Economie Stabilization Act of 1970, as amended, 12

U.S.C.A. § 1904 (1975 Supp.) [incorporated into the

Emergency Petroleum Allocation Act of 1973, Pub. L. No.

93-159, 87 Stat. 627 by its See. 5(a) (1)]:

‘Condor Operating Co. v. Sawhill, F.2d ——, (T.E.C.A.

Nos. 5-10, 5-11, Feb. 7, 1975). ‘‘The purported appeal by the de-

fendants from the order in question does not ameliorate the prob-

lem. They [the appellants} had no appeal as of right from the

interlocutory order [granting a preliminary injunction]; they

had obtained from the district court no certification for the usual

interlocutory appeal, nor had they filed application with this court

for leave to so appeal within the time preseribed by § 211(d) (2)

of the Economic Stabilization Act with reference to 28 U.S.C.

§ 1292(b). . . .”’ We held in that case, however, that certification

of a constitutional issue by the trial court, not present in the case

at bar, invested us with jurisdiction to consider related problems.

*39 Fed. Reg. 42246 (Dec. 4, 1974) as amended 39 Fed. Reg.

44710 (Dee. 27, 1974). 40 Fed. Reg. 2559 (Jan. 13, 1975).

10a

‘*(2) A district court of the United States or the

Temporary Emergency Court of Appeals may enjoin

temporarily or permanently the application of a par-

ticular regulation or order issued under this title to

a person who is a party to litigation before it. Ap-

peals from interlocutory decisions by a district court

of the United States under this paragraph may be

taken in accordance with the provisions of section

1292(b) of title 28, United States Code; except that

reference in such section to the courts of appeals

shall be deemed to refer to the Temporary Emer-

gency Court of Appeals.’’

While subdivision (a) of the section thus referred to, upon

which the appeals appear premised, provides for appeals

as of right from orders granting or denying interlocutory

injunctions, subdivision (b) to which the authorization for

appeals from such orders are expressly limited by the

Economie Stabilization Act as we have seen, reads as

follows:

‘‘When a district judge, in making a civil action an

order not otherwise appealable under this section,

shall be of the opinion that such order involves a con.

trolling question of law as to which there is sub-

stantial ground for difference of opinion and that an

immediate appeal from the order may materially ad-

vance the ultimate termination of the litigation, he

shall so state in writing in such order. The Court of

Appeals may thereupon, in its discretion, permit an

appeal to be taken from such order, if application is

made to it within ten days after the entry of the

order: Provided, however, That application for an ap-

peal hereunder shall not stay proceedings in the dis-

trict court unless the district judge or the Court of

Appeals of a judge thereof shall so order.’’

lla

To read § 211(d)(2) of the Economie Stabilization Act

with reference to our jurisdiction on appeal to mean that

appeals from interlocutory orders denying or granting

injunctions may be taken ‘‘in accordance with the provi-

sions of section 1292({a) ...’’ rather than, or in addition

to, ‘‘the provisions of section 1292(b) .”’ would do

violence to the language of our jurisdictional charter. The

two subdivisions were designed to reach different subject

matters; one does not lend itself to an interpretation that

includes the other, for that would ‘‘effeectively turn 1292

upon its head’’. Cf. Tidewater Oil Co. v. United States,

409 U.S. 151 (1972).

The meaning being so facially clear, to seek qualifica-

tions or reversal through contextual implications or legis-

lative history seems somewhat gratuitous. Yet both sup-

port acceptance of the plain meaning of the employed

language.

Vhen the Economie Stabilization Act of 1970 (Pub. L.

No, 91-379) was adopted originally no provisions relating

to judicial review were specified. Thus, apart from final

judgments, any interlocutory orders that district courts

might have granted within the parameters of the Adminis-

trative Procedure Act and the Rules of Civil Procedure,

were reviewable in courts of appeal under §¢ 1292—if

granting or denying a preliminary injunction, by appeal

as of right by virtue of its subsection (a); and as to any

other interlocutory order upon certification below and

within the discretion of the appellate court as permitted

by its subsection (b).

Section 211 of the Act, specifically providing for, and

regulating, judicial review, was added by the Economie

Stabilization Act Amendments of 1971 (Pub. L. No. 92-

210). The 1973 amendments to the statutes did not change

this section.

l2a

The precursor of Section 211 was a bill sent by the

President to Congress as a part of a message following

the announcement of Phase II to extend and amend the

Economic Stabilization Act of 1970. The proposal for the

creation of the Temporary Emergency Court of Appeals

of the United States was that it should ‘‘have the powers

of a cirenit court of appeals with respect to the jurisdic-

tion conferred on it by this title except that the court shall

not have power to issue any interlocutory decree staying

or restraining, in whole or in part, any provision of this

title, or the effectiveness of any regulation or order issued

thereunder.’? The bill would have provided for the cer-

tification of constitutional questions to this court by dis-

trict courts but would have precluded district courts from

granting even permanent injunctions, which would have to

be isued by the Temporary Emergency Court of Appeals

upon appeal from final declaratory judgments or after

hearing in this court upon recommendation of a district

judge, or by the Supreme Court.

After holding hearings on the administration bill, the

Senate Banking Committee reported a clean bill, S. 2891,

which contained the precise language later enacted as

Section 211. The explanation contained in the Senate Com-

mittee report included the following comments (U.S. Code

Cong. & Ad. News pp. 2292-4):

‘‘The judicial review provision has been written

with several important principles in mind: (1) speed

and consistency of decisions in cases arising under

the Act, (2) avoidance of any breaks or stays in the

operation of the Stabilization Program, and (3) relief

for particular persons aggrieved by the operation of

the program.

‘*A preliminary limitation is set upon the power of

this new court. It may issue, with one exception, no

l3a

interlocutory or temporary order staying or restrain-

ing in whole or in part any provision of the Act or the

effectiveness of any regulation or order issued pur-

suant to the Act. The sole exception is that it may

issue a temporary injunction restraining the applica-

tion of a particular regulation or order to a person

who is a party to litigation before it. In all other re-

spects the Temporary Emergency Court of Appeals

shall have all the powers of a circuit court of appeals.’’

The Senate Committee’s report also states, inter alia:

‘*Several subsections are devoted to making explicit,

the precise authority and limitations on authority that

are being placed on the courts considering cases and

controversies arising under this Act and in reviewing

the decisions of lower courts in these matters.

‘*In order to provide relief for a particular person

who may be aggrieved by the operation of this program

during the period in which he is attempting to establish

his legal position, a district court or the Temporary

Emergency Court of Appeals may enjoin temporarily

or permanently the application of a particular regula-

tion or order issued under the Act to a person who is

a party to litigation before it. To insure speedy dis-

position of this matter, an appeal may be taken from

the granting of such an injunction from the district

court to the Temporary Court of Appeals pursuant to

the procedure provided in 28 USC 1292(b) for appeal-

ing interlocutory appeals in expedited form.”’

A floor amendment to the judicial review section was

offered by Senator Metcalf and defeated. The amendment,

if it had been adopted, among other things, would have

permitted review of interlocutory injunctions by the Tem-

porary Emergency Court of Appeals in the usual way they

l4a

would be reviewable by courts of appeal. As Senator Met-

calf expressed it: ‘‘In short, it would provide what exists

today—those legal rights that are presently operating

under the Economic Stabilization Act of 1970.’’ Senator

Tower made a statement in which he said that the amend-

ment would pose a serious threat to the program. Senator

Sparkman said that he hoped the amendmeni would not be

agreed to ‘‘because I think it would break up entirely

something that we worked long and hard to achieve.’’ 117

Cong. Rec. 43478-9 (Nov. 30, 1971).

The House version, H.R. 11309 was passed on Dee. 10,

1971. Specifically as to interlocutory appeals it would have

provided: ‘‘The Temporary Emergency Court of Appeals

shall not have the power to issue any interlocutory decree

staying or restraining, in whole or in part, any provision

of this title or the effectiveness of any regulation or order

issued under this title.’’ Permanent injuuctions would have

been issued ‘‘by the Temporary Emergency Court of Ap-

peals upon appeal, or, after hearing, upon recommendation

of a United States district court or judge thereof. Such an

injunction may also be issued by the United States Supreme

Court as provided for by this section.’’

Because of differences in the House and Senate versions,

the proposed amendments were sent to a conference com-

mittee which adopted the Senate version. The conference

report states in part that ‘‘[t]he House bill differed from

the Senate bill... in that ... it gave no injunctive authority

to the district courts.’’ S. Rep. No. 92-579, 92d Cong., 1st

Sess. 26-21 (1971). The conference report was agreed to by

both houses and the Act, reflecting the Senate version, was

signed into law on Dee. 22, 1971.

The legislative history makes plain at least that altera-

tion of traditional judicial review provisions was intended.

And there is nothing to indicate that the specifie provisions

for review as expressed in the Act were not intended.

Wa

In addition to the plain language of the particular sub-

section under discussion, and the legislative history bear-

ing upon it, the context of the entire section itself demon-

strates that the changes reflected in § 211(d)(2) were both

intended and carefully considered.

The grant to this court of exclusive jurisdiction over

all appeals from district courts of the United States in

cases and controversies arising under this title is limited

by the phrase, ‘‘ Except as otherwise provided in this see-

tion... .’’ (§ 211(b)(2)).

The certification by district courts of constitutional is-

sues is required before this court may reach them except

as a part of jurisdiction otherwise granted. Subject to

this power of determination upon certification below, ‘‘. . .

no order of such agency shall be enjoined or set aside, in

whole or in part, unless a final judgment determines that

such order is in excess of the agency’s authority, or is based

upon findings which are not supported by substantial evi-

dence.’’ (§ 211(4)(1).)

As noticed above, however, ‘‘A district court of the

United States or the Temporary Emergency Court of Ap-

peals may enjoin temporarily or permanently the applica-

tion of a particular regulation or order issued under this

title to a person who is a party to litigation before it’’, but

appeals from such interlocutory decisions by a district

court ‘‘may be taken in accordance with .. . section 1292

(b) ....’? (§ 211(d)(2).) ‘‘ Except as provided in subsec-

tion (d) of this section, no interlocutory or permanent in-

junction ... shall be granted by any district court of the

United States. .. .’’ (§ 211(e)(1).)

If (d)(2) were to be read as meaning that appeals may

be taken in accordance with § 1292(a), there would be a

direct contradiction in terms. If the subsection were

thought to be merely permissive in this respect, leaving

subsection (a) to be utilized as a matter of right anyway,

l6a

reference to subdivision (b) would indicate some mindless

aberration which surely this court should not imply, and

cannot fairly imply for the reasons heretofore discussed

and those to be stated later. Equally as insupportable

would be to read the reference to subsection (b) as intend-

ing to provide: ‘‘In addition to the jurisdiction provided

by subsection (a) above, the Temporary Emergency Court

of Appeals shall have the jurisdiction provided by subsec-

tion (b) to review interlocutory orders.’’ The ‘‘puzzling’’

nature of this section which still remains in the view of

Exxon if one of these other interpretations is adopted can

only be resolved by accepting the plain language of the

statute.

Thus, it is clear from (a)/2) in view of all other avail-

able guides, that any appeal to this court from an inter-

locutory order granting or denying a preliminary injunc-

tion may be taken only on certification by the district court.

Why should this be more s‘range than certification proce-

dure for reference to this court of interlocutory constitu-

tional questions? If there were an appeal as of right from

orders denying preliminary injunctions or restraining or-

ders, the certification of interlocutory constitutional prob-

lems would be rather meaningless; all a party seeking an

interim review here would have to do would be to request

and be refused a restraining order or preliminary injune-

tion. Appeals as of right concerning both interim constitu-

tional problems and interlocutory injunction decisions could

well have been thought by Congress to invite delays in the

progress of these cases to final judgment in the district

court. Our experience has Leen that district courts have

been perhaps overly prone to certify interim constitutional

problems to this court. See e.g., Shapp v. Simon, 510 F.2d

379 (T.E.C.A. 1975). There is little reason to suppose that

if the requirement of § 211(d)(2) is adhered to substantial

questions will not be certified as to rulings on applications

for interlocutory injunctions where any reasonable justi-

fication appears.

. —

17a

Should this not prove correct in every instance, parties

still would not be left ‘‘at the mercy’’ of judges who un-

reasonably refuse to certify pursuant te the reference of

§ 211(d)(2), although this possibility has not been thought

to constitute any real objection to the existence of discre-

tionary appeals in ordinary context. Subsection (d) (2)

itself provides in effect that the Temporary Emergency

Court of Appeals, in addition to district courts, may en-

join temporarily the application of a particular regulation

or order to a party upon original application here as well

as in connection with certified interlocutory appeals from

orders of district courts. In Pacific Coast Meat Job. Ass’n.,

Ine. v. Cost of Living Coun., 481 F.2d 1388 (T.E.C.A. 1973),

a case cited by Exxon as one at variance with the present

interpretation of § 211(d)(2), this court in addition to the

usual appeal had before it an original application for an

injunction filed with this court which it denied in connec-

tion with its reversal of the judgment of the lower court.

While the question was not discussed, in our present view

we in any event did have jurisdiction of the original appli-

cation and perhaps pendant jurisdiction of the appeal.

Also relied upon by Exxon as being inconsistent with the

Condor review of § 211(d)(2) is County of Nassau v. Cost

of Living Council, 499 F.2d 1340 (T.E.C.A. 1974), and

McGuire Shaft & Tunnel Corp. v. Local u. No. 1791, U.M.W.,

475 F.2d 1209 (T.E.C.A.), cert. denied, 412 U.S. 958 (1973).

In the same connection could have been added League of

Vol. Hosp. & H. of N.Y. v. Loeal 1199, Drug & H.U., 490

F.2d 1398 (T.E.C.A. 1973). It is true that a threshold ques-

tion of jurisdiction was considered in County of Nassau,

but this was made to depend solely upon whether there was

any distinetion under the circumstances between temporary

restraining orders and preliminary injunctions; insofar as

the opinion discloses the problem with which we are con-

fronted here was neither presented nor ruled upon. Mce-

Guire Shaft & Tunnel Corp. did not involve a § 211 situa-

18a

tion at all, but turned upon § 210(a), since relief was sought

for violation of administrative orders, not against their

application or operation, this court stating (475 F.2d at

1214):

‘‘Clearly, the limitations on the federal courts’ au-

thority to enjoin agencies of the government in the

execution of the act, orders, and regulations there-

under were not considered synonymous with the right

of an individual injured by violations of the program

to enjoin those violations.’’

League of Voluntary Hospitals did not consider the prob-

lem either. But the latter decision underscores the dichot-

omy, if not paradox, which is presented by an interlocutory

appeal as of right from an order granting or denying a

preliminary injunction through which constitutional issues

ean be adjudicated here, and the requirement of certifica-

tion to this court of constitutional issues as a condition for

interlocutory review.

We no longer can delay directly facing up to the jurisdic-

tional problem recognized but determined only in passing in

Condor. Not only do we have a continuing duty to inquire

into our jurisdiction as such, but we should be punctilious

also in assuring ourselves that safeguards established by

Congress against excessive interlocutory demands upon us

to the undue delay of final decision below are not disre-

garded.

If, as the parties claim, every refusal of a preliminary

injunction as well as every such interlocutory injunction

‘an be appealed as of right by any party irrespective of the

trial court’s conviction that appeal would be frivolous or

would not advance the final determination of the cause and

thus should not be certified to this court, a pattern for sub-

stantial delay of final determination in almost every such

case would be engrained into the law contrary to the ex-

19a

pressed intent of Congress.’ Moreover, such uncertified

appeals, which usually involve constitutional attacks, in

effect would wash out any significance of § 211(c) concern-

ing the certification of interlocutory constitutional issues.

The interruption of proceedings in district courts by ap-

peals of right from all of such interlocutory orders, which

are customarily sought in the first instance, is a prospect

which the Congress did not have to invite, whether wise

or unwise. Such appeals however unmeritorious are always

time consuming, not infrequently premature and often

present problems which could be better considered by us

following development of a more adequate record by the

trial courts.

There, indeed, may be much to commend the Congres-

sional plan in preference to such a system for unlimited

appeal of orders granting or denying preliminary injune-

tions. Groundless interlocutory appeals under the Act may

be sereened by the district court beneficially in the first

instanee, as in the case of the review of constitutional

problems. Improvident interlocutory appeals should not be

encouraged. If the granting of preliminary relief against

application of a regulation or order is improperly refused

and the matter is deemed of sufficient importance, our

* Tidewater Oil Co. v. United States, 409 U.S. 151 (1972). con-

struing in different context § 1292(b) as pertaining to orders other

than those granting or denying preliminary injunctions is not

inconsistent in the present entirely dissimilar context with its appli-

eability to the latter orders in view of the express provisions of the

Economic Stabilization Act. It seems quite clear in the present con-

text that when Congress expressly stated in a single subsection that

a ‘‘cistrict court ... may enjoin temporarily . the applice tion

of a particular regulation or order .. .’’ and that ‘‘[a]ppeals from

interlocutory decisions by a district court... under this paragraph

may be taken in accordance with the provisions of section 1292

(b) ...’’, it did not mean that such appeals could not be taken by

virtue of subsection (b) if the order was one ‘‘enjoined fing |

temporarily .. . the application of a particular regulation or

order. ...’’

20a

jurisdiction may be invoked by an original application

which we can reject without interruption of the proceed-

ings below, or grant if a sufficient showing is made to war-

rant this action. Should the district court refuse to certify

an interlocutory appeal from an order granting an injunc-

tion, the case in all probability better could proceed to final

determination below anyway unless this court is convinced

upon a clear showing of the absence of legal foundation

that prohibition, or other extraordinary remedy should

issue. If the granting of such preliminary injunction is

within the discretion of the trial court and thus not amen-

able to extraordinary relief here, the probability of our

overruling the exercise of that discretion even on inter-

locutory appeal could be minimal. But irrespective of

whether the system mandated by Congress is the best one,

we are bound to give it effect, no constitutional obstacle

appearing.

The appeals are hereby disinissed for lack of jurisdiction

in this court.

TECA

No. 3-5 Exxon Corporation v. Feperat Enercy ADMINIS-

TRATION

No. 6-8 Maratuon Or. Company v. Feperat Ewerey Ap-

MINISTRATION

Hastinas, Judge, dissenting. The statement in Section

911(d)(2) of the Economie Stabilization Act, 12 U.S.C.

1904 note, that appeals from decisions of district courts

respecting injunctions ‘‘may be taken in aceordance with

the provisions of section 1292(b) of title 28, United States

Code ...,’’ presents this court with a difficult question of

interpretation. There seem to be two possible interpreta-

tions of the provision. Either the mention of 4 1292(b)

precludes appeals pursuant to §1292(a)(1), or the latter

provision remains available. The two interpretations are

21a

each, at least in some respect, unsatisfactory. In lighc of

the congressional policy behind the judicial review provi-

sions of the Economic Stabilization Act, I find the major-

ity’s view that 4 1292(a)(1) review is precluded the far

less satisfactory interpretation and I therefore dissent.

The majority holds that it was the intent of Congress

to limit the appellate jurisdiction of the Temporary Emer-

gency Court of Appeals over orders granting or denying

preliminary injunctions to those which have been certified

by the district court under 28 U.S.C. § 1292(b). A complete

review of the legislative history of the Act reveals only a

single mention of 28 U.S.C. § 1292(b) in all of the commit-

tee reports and debates on the floor of the House and

Senate. That single sentence, in the Senate committee re-

port, does little more than restate the language of the

statute:

To insure speedy disposition of this matter, an appeal

may be taken from the granting of such an injunction

from the district court to the Temporary Emergency

Court of Appeals pursuant to the procedure provided

in 28 USC 1292(b) for appealing interlocutory ap-

peals in expedited form. S. Rep. No. 92-507, 92d Cong.,

Ist Sess. 12 (1971); U.S. Cope Conc. & Ap. News 2294

(1971).

I cannot join the majority’s conelusion that any decision to

limit review to the provisions of 4 1292(b) was ‘‘both in-

tended and carefully considered.’’

If Congress had in fact intended to restrict review of

orders concerning injunctions to those certified by the dis-

trict court, any careful consideration of the language of

, 1292(b) and the cases which have interpreted it would

have revealed that § 1292 would not be an appropriate ve-

hicle to ‘‘insure speedy disposition’’ of orders respecting

preliminary injunctions.

22a

The Supreme Court in Tidewater Oil Co. v. United

States, 499 U.S. 151 (1972), concluded that the statute’s

legislative history demonstrated ‘‘that § 1292(b) was in-

tended to establish jurisdiction in the courts of appeals to

review interlocutory orders, other than those specified in

§ 1292(a), in civil cases in which they would have juris-

diction were the judgments final.’’ 7d. at 168 (footnote

omitted). The Court further stated that ‘‘§1292(b) was

intended to supplement § 1292(a), not to provide a substi-

tute for it.’’ 7d. at 168 n. 41. The Court went on to consider,

in dicta, the possible usefulness of § 1292(b) in securing

review of orders concerning preliminary injunctions in a

class of cases where resort to § 1292(a) was precluded. The

Court said, ‘‘[T]he fact is that permitting interlocutory

appeal under § 1292(b) would not bring these orders and

the related evidence before the courts of appeals since they

come within § 1292(a)(1).’’ 7d. at 172 n. 47. The implica-

tion of this observation for our jurisdictional question is

clear. If, as the majority holds, § 211(d)(2) of the Eeo-

nomic Stabilization Act prevents use of §1292(a)(1) to

appeal orders granting or denying preliminary injunctions,

then the certification procedure of § 1292(b) could not be

used to appeal such orders either.

The Supreme Court’s observation was based on careful

conzideration of iegislative history. The Court’s analysis

is persuasive and should be followed here. But even if we

were to veject as dicta the Supreme Court’s conclusion

that § 1292(b) is wholly unavailable to review a prelim-

inary injunction decision, § 1292(b), if available, would be

a very awkward and inappropriate mechanism for such

review.

The language of 28 U.S.C. § 1292(b) only makes sense

if it supplements review as of right from orders concern-

ing preliminary injunctions rather than supplants it. The

section begins ‘‘when a district judge, in making in a civil

action an order not otherwise appealable under this section.

23a

...? Since §1292(a)(1) permits review of injunctive or-

ders, by its own terms, the proce lures of § 1292(b) are noi

to be applied to appeals from injunctions.

The standards for certification under § 1292(b) were not

designed to be and are not suitable for application to pre-

liminary injunctions. Section 1292(b) requires a ‘‘control-

ling question of law,’’ but the controlling issues in a pre-

liminary injunction proceeding are in large part factual,

such as whether there is irreparable harm to the plaintiff,

whether harm to the defendant if an injunction is granted

would outweigh benefit to the plaintiff, and whether an in-

junction would serve the public interest. There is substan-

tial precedent supporting the view that § 1292(b) certifica-

tion is inappropriate in matters that lie within the discre-

tion of the district court,’ but the issuance of a preliminary

injunction is ‘‘committed to the sound judicial discretion

of the trial court.’’ League of Voluntary Hospitals v. Local

1199, Drug & Hospital Union, T.¥B.C.A., 490 F.2d 1398,

1401 (1973).

While the legislative history of the Economie Stabiliza-

tion Act fails to demonstrate a clear intent to restrict re-

view of decisions about preliminary injunctions to the pro-

cedures of §1292(b), it does contain a detailed statement

of the congressional policies which the judicial review pro-

visions were designed to implement:

The judicial review provision has been written with

several important principles in mind: (1) speed and

consistency of decisions in cases arising under the Act,

(2) avoidance of any breaks or stays in the operation of

the Stabilization Program, and (3) relief for particular

persons aggrieved by the operation of the program.

19 Moore’s Feperat Practice § 110.22/2] at 261 (2d ed. 1973) ;

C, Wrieut, LAw or Feperar Courts § 102 at 463 (2d ed. 1970).

But see Katz v. Carte Blanche Corp., 3 Cir., 496 F.2d 747, 752-756,

cert. denied, ——- U.S. , 95 S.Ct. 152 (1974).

24a

s. REP. NO. 92-507, 92d Cong., Ist Sess, 10 (1971); v.s.

CODE CONG, & AD. NEWs 2292 (1971).

Limiting appeals from orders concerning preliminary in-

junctions to those certified pursuant to § 1292(b) would be

likely to produce delay and inconsistency rather than fur-

ther the legislative intent. Considering the inapplicability

of the requirements for a certification under § 1292(b) to

preliminary injunction questions, a district court would

often be correct in refusing to certify its order for appellate

review. As a result, district court orders inconsistent with

decisions of the Temporary Emergency Court of Appeals

could remain in effect for substantial periods of time. While

a party who had been denied preliminary relief in the dis-

trict court eculd petition our court directly for an injune-

tion, the party aggrieved by the issuance of an injunction

by the district court would have no such alternative avail-

able. Thus, the situation Congress most feared, of injune-

tions creating breaks or stays in the program, is furthered

by limiting review to § 1292(b).

The general design of the jurisdictional review provi-

sions of the Economie Stabilization Act is to limit the rela-

tive authority of the district courts and to concentrate au-

thority in our court. Limiting review of injunction orders

to those properly certified under § 1292(b) would make dis-

trict courts in cases arising under: the Keonomie Stabiliza-

tion and Emergency Petroleum Allocation Acts more pow-

erful than they would be in other cases and our court less

powerful than other courts of appeals. The district courts

would have what the Supreme Court has described as ‘‘vir-

tually unlimited authority over the parties in an injunctive

proceeding.’’ Sampson v. Murray, 415 U.S. 61, 87 (1974).

The holding of the majority here that § 1292(b) is the

only avenue of appeal for orders respecting preliminary

injunctions is not only inconsistent with the well-developed

interpretation of §1292(b) and the legislative policies be-

hind the Economic Stabilization Act, but it is also incon-

sistent with the prior uniform practice of our court in

hearing appeals from preliminary injunction decisions

without requiring a § 1292(b) certification.

In Pacific Coast Meat Jobbers Ass’n v. Cost of Living

Council, T.E.C.A., 481 F.2d 1388 (1973), our court heard and

decided an appeal by private parties which had been de-

nied a preliminary injunction. While the court also had

before it an original application for a preliminary injune-

tion, the opinion of the court leaves no question that it

was deciding both the preliminary application and the ap-

peal. In League of Voluntary Hospitals, supra, the court

stated that the case before it was ‘‘an appeal, pursuant to

Section 211 of the Feonomie Stabilization Act’’ from an

order granting a preliminary injunction, yet the court did

not find it necessary to diseuss any possible jurisdictional

obstacles to its hearing the case.

In County of Nassau vy. Cost of Living Council, T.E.C.A.,,

499 F.2d 1340 (1974), our court heard appeals by a gov-

ernment ageney from a series of decisions of a district

court granting among other relief, a temporary restraining

order. In County of Nassau the jurisdictional question was

explicitly considered. The court said:

At the threshold a question arises whether the tem-

porary restraining order against the COLC’s tempo-

rary order is appealable. We hold that it is appealable

under the rationale of Sampson v. Murray, 415 U.S.

61, 94 S.Ct. 937, 39 L.Ed.2d 166 (decided Feb. 19, 1974)

.... 499 F.2d at 1343.

In Sampson v. Murray, the Supreme Court held that a tem-

porary restraining order would be considered as a prelim-

inary injunction so that review under 28 U.S.C. § 1292(a)

(1) would be available. The Court reasoned:

A district court, if it were able to shield its orders

from appellate review merely by designating them as

eee eee

26a

temporary restraining orders, rather than as prelim-

inary injunctions, would have virtually unlimited au-

thority over the parties in an injunctive proceeding.

415 U.S. at 86-87.

Since Sampson was an interpretation of § 1292(a)(1), our

court’s reliance upon that case is an implicit holding that

the provisions of 28 U.S.C. § 1292(a)(1) permit our court

to hear appeals from decisions concerning preliminary in-

junctions without a certification.

In light of this precedent, the inutility of § 1292(b) in

reviewing preliminary injunction orders and the legislative

policies behind the judicial review provisions of the Eco-

nomic Stabilization Act, I would hold that § 211(d)(2) of

the Act does not preclude this court’s jurisdiction over

appeals pursuant to 28 U.S.C. §1292(a)(1). While I ree-

ognize that this holding would render the reference to

§ 1292(b) in 4 211(d)(2) superfluous, I believe it achieves

a far more satisfactory result than the holding of the

majority.

27a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

No. C 75-36

MEMORANDUM AND ORDER

Maratrnon Or. Company, Plaintiff,

v.

FeperaL FExercy ApMINistraTion, et al., Defendants.

. > *

WatryskI, J.:

This cause is before the Court on a motion for a pre-

liminary injunction. Because of the nature of the statute

and regulation involved herein and the relief sought, this

Court has caused the matter to be expedited in every way.

The Court held a hearing on the motion on January 29,

1975, and permitted the Ashland Oil Company to intervene,

pursuant to Rule 24(a), Federal Rules of Civil Procedure,

as a party defendant. The Court also permitted the Inde-

pendent Refiner’s Association of America to appear as an

amicus curiae. All have filed briefs on the matters raised

by the motion.

Fixpincs or Fact

Plaintiff, Marathon Oil Company (hereinafter Mara-

thon), is a corporation organized and existing under the

laws of the State of Ohio, with its corporate offices and

principal place of business in Findlay, Ohio. Marathon is

an integrated medium-sized oil company which produces,

transports, refines and sells erude oil in the United States

and abroad. Its principal markets for petroleum products

in the United States are in the Midwest and in the South-

east.

28a

Defendant, Federal Energy Administration (herein-

after FEA), is an agency and instrumentality of the United

States under the Federal Energy Administration Act of

1974, 15 U.S.C., § 761 ef seq.; and it was established by

Executive Order No. 11,790 (June 27, 1974). The FEA :s

responsible for the administration of the Emergency Pe-

troleum Allocation Act of 1973, as amended (hereinafter

the EPAA), 15 U.S.C., (751 et seq. This responsibility

previously was exercised by the Federal Energy Office

(hereinafter FEO) established by Executive Order No.

11,748, 3 C.F.R., 6376 (Supp. 1974).

Defendant Frank G. Zarb is Administrator of FEA. The

authority which the EPAA vests in the President was dele-

gated to the Administrator by Executive Order No. 11,790

(June 27, 1974).

Defendant-intervenor, Ashland Oil, Incorporated (here-

inafter Ashland), is an ‘independent refiner’’ as that term

is defined in 43 of the EPAA and the regulations issued

thereunder.

The EPAA became law on November 27, 1973. Section

4(a) thereof required the President to promulgate regula-

tions for the mandatory allocation of erude oil, residual

fuel oil and refined petroleum products in amounts, and at

prices to be specified by the regulations. Those regulations

were to implement, ‘‘to the maximum extent practicable’’,

certain objectives as set forth in §4(b) of the Act.

Among others these objectives included the:

«<* * * preservation of an economically sound and com-

petitive petroleum industry; including the priority

needs to restore and foster competition in the produe-

ing, refining, distribution, marketing, and petrochem-

ical sectors of such industry, and to preserve the com-

petitive viability of independent refiners, small refin-

ers, nonbranded independent marketers, and branded

independent marketers;

en

29a

equitable distribution of c.ude oil, residual fuel oil,

and refined petroleum products at equitable prices

among all regions and areas of the United States and

sectors of the petroleum industry, including independ-

ent refiners, small refiners, nonbranded . »dependent

marketers, branded independent marketers, au’ among

all users;

* - *

economic efficiency; and

minimization of economic distortion, inflexibility, and

unnecessary interference with market mechanisms.”’

The term ‘‘independent refiner’’ is defined in 4 3(3) of

the EPAA as any refiner that obtains more than 70 percent

of its refinery input from sources not subject to its control

and which markets a substantial portion of its gasoline

through independent marketers. The term ‘‘small refiner”’

is defined in §3(4) as any refiner whose total refinery

capacity does not exceed 175,000 barrels per day.

Thereafter, the President established the Federal

Energy Office which adopted Mandatory Fuel Allocation

Rules. These were revised by the FEO on January 14, 1974,

when it issued the Petroleum Allocation and Price Regu-

lations (39 Federal Register 1924, et seq. January 15,

1974).

Onc aspect of the FEO’s initial regulatory scheme was

a two-tier pricing system which had its antecedents in the

President’s Economic Stabilization Program.

In August of 1973, the Cost of Living Council (herein-

after CLC), as a part of Phase IV of the Economic Stabiii-

zation Program, was charged with devising a system of

price controls for the petroleum industry. At that time the

United States was becoming increasingly dependent on

foreign crude oi! to meet its supply needs because domestic

producers were not supplying as much of our needs as

30a

formerly. Foreign crude oil prices, moreover, were in the

process of rising substantially above their previous levels

due to concerted action by the Organization of Petroleum

Exporting Countries (hereinafter OPEC). This rise in

prices began in 1971 when the members of OPEC com-

meneced negotiations on a series of ‘‘settlements’’ with the

major international oil producers; each new settlement was

somewhat higher than the last and further drove up the

price of crude oil on the world market, including the price

of domestic crude oil.

Thus, the CLC determined that any system of price

controls to be imposed on the petroleum industry must

minimize as much as possible the inflationary impact of

world-wide oil price increases on the United States econ-

omy, while at the same time encouraging increased do-

mestic production of crude oil. To accomplish those dual

objectives, CLC decided that most domestically-produced

crude oil should be subject to ceiling price controls, but

that some domestically-produced erude oil should be ex-

empted from ceiling price controls in order to stimulate

domestic production. The CLC also determined that the

first sale of imported erude oil must be exempted from

ceiling prices because it would not be possible to obtain

sufficient imported supplies at a controlled price. The re-

sult was a two-tier pricing system for crude oil, promul-

gated by the CLC in August, 1973, and subsequently

adopted on January 14, 1974 in the FEO Mandatory Pe-

troleum Allocation and Price Regulations.

Under the two-tier pricing system, FEA imposed a eceil-

ing price on all domestic crude oil produced from a given

property to the extent that the level of crude oil produe-

tion from this property falls at or below the level of pro-

duction from the same property in the same month of

1972 (‘‘old’’ oil). Crude oil produced in exeess of 1972

production levels from the same property (‘‘new’’ oil) is

exempt from price controls, and each barrel of new oil

3la

produced releases from price controls a barrel of old oil

(‘‘released’’ oil). The first sale of imported crude oil into

the United States remains free from price controls under

FEA regulations, and the ‘rst sale of crude oil produced

from ‘‘stripper’’ wells (wells producing less than 10 bar-

rels per day) also is exempted from price controls under

§ 4(e)(2)(A) of the EPAA.

The present ceiling price on old oil is basically the May

15, 1973 posted price, plus $1.35, or approximately $5.25

per barrel. When the CLC imposed controls on old do-

mestic crude oil in August, 1973, the per barrel ceiling

price was set at May 15, 1973 posted prices plus $.35, re-

sulting in a price of approximately $4.25 per barrel. The

price remained at that level until it was raised by $1.00

to the present level of approximately $5.25 per barrel on

December 19, 1973. During that same time period, how-

ever, prices on representative foreign crude oil rose by

more than $8.00 per barrel from $3.07 per barrel in August,

1973, to approximately $11.65 per barrel in January, 1974.

The increase in foreign crude oil prices has further stim-

ulated an increase in the price of uncontrolled domestic

crude oil, ie., new, released and stripper-well oil, from

an August, 1973 price of approximately $5.00 per barrel

to a current price in excess of $10.00 per barrel. Presently,

approximately 60 percent of all crude oil runs to stills in

the United States consists of oil not subject to FEA price

controls, while the balance, FEA price controlled old oil,

represents approximately 40 percent of all crude oil runs

to stills.

The great disparity between the prices of uncontrolled

and controlled crude oil in the United States, which is a

direct result of FEA’s two-tier pricing system, was not,

however, having an equal impact on all refiners prior to

the cost equalization program. Instead, there existed un-

even access to price controlled ‘‘old’’ oil; most major in-

tegrated oil companies had far greater access to old oil

d2a

than did the small independent refiners, as a class. The

result was that those refiners, including some majors, which

were ferced to rely more heavily on uncontrolled domestic

or foreign crude oil incurred higher composite crude costs

in the refining of products than those which had greater

access to price-controlled old oil. The uneven distribution

of the benefits of old oil among refiners, which resulted

in significant input crude cost differentials, was translated

into significant price differentials among refiners in their

sales of refined petroleum products under applicable FEA

price regulations.

Under FEA price regulations for refiners, a refiner can

charge no more than its May 15, 1973 price on a given

product, plus an adjustment for net increase since May,

1973, in the cost of crude oil and purchased refined prod-

ucts. While May 15, 1973 profit margins among refiners

varied only slightly, the largest contribution to the vary-

ing prices charged by refiners has been the difference in

average weighted crude costs attributable to the two-tier

pricing system on crude oil. Those differences have been

passed on at the wholesale and retail level sinee such

resellers, under FEA regulations, while they must main-

tain their May 15, 1973 mark-up on a product, may pass

through on a dollar-for-dollar basis any increased product

costs from their suppliers.

During the shortages of refined petroleum products

created by the Arab oil embargo in the Winter and Spring

of 1974, the cost differentials resulting from the different

proportions of old oil which refiners used to compute their

overall crude costs were passed through easily to the ulti-

mate consumer. The result was, of course, that consumers

were paying significantly different prices for the same

refined product. With the termination of the Arab oil em-

bargo and a re-emergence of adequate supplies, competi-

tion began to reappear for certain products. Although the

differences in refiners’ average crude oil costs continued,

33a

competition in the marketing of refined products has

caused a recent narrowing in retail prices.

In order to remain competitive, however, many of those

refiners with higher input costs due to their low proportion

of old oil, and those marketers to whom they sell, have

been forced to endure a severe cost-price squeeze. Many

small and independent refiners and independent marketers

—unable to absorb the full amount of such costs—were

forced to charge higher prices for their products than

their competitors with a resulting loss of market shares.

Thus, the two-tier erude oil pricing structure, which was

deemed necessary to minimize the inflationary impact of

world crude oil prices and to maintain incentives for

domestic production, generated economic distortions and

interfered with market machanisms, including the con-

tinued existence of independent refiners because of the

uneven distribution of old oil among all of American

refiners.

The regulatory scheme also included a provision that

the supplier/purchaser relationships in effect under con-

tracts for sales, purchases and exchanges of domestic crude

oil on December 1, 1973, shall remain in effect for the

duration of the erude oil allocation program.

The President’s program also included a mandatory

buy/sell feature under which each ‘‘small’’ and ‘‘inde-

pendent’’ refiner (as those terms are defined in §§ 3(3)

and 3(4) of the Allocation Act) is entitled to purchase a

varying quantity of crude oil, the amount of which is caleu-

lated in accordance with rules set forth in 10 C.F.R. § 211.65,

from the 15 United States refiners which are neither

‘*small’’? nor ‘‘independent’’ within the meaning of the

EPAA.

The FEA’s special pricing rules governing sales of

crude oil under the buy/sell program (10 C.F.R. § 212.94)

provide that a refiner-seller may charge no more than its

34a

weighted average price of all crude oil delivered to it in

the area of the country where the sale is made in the

month the sale is made, plus certain adjustments for

handling, transportation, and differing crude grades. The

program also allows a refiner-seller to pass through on a

dollar-for-dollar basis in its prices for refined petroleum

products any increased costs related to replacing crude

sold under the mandatory buy/sell program with higher-

priced crude oil.

The purpose of the buy/sell program is to correct supply

imbalances between the major integrated refiners, which

have relatively greater direct control over both domestic

and foreign crude oil, and the small and independent re-

finers, which have been disproportionately dependent on

foreign crude oil in a period of shortages. Nevertheless,

the FEA pricing rules for buy/sell program sales, which

require sales be made basically at a refiner-seller’s weight-

ed average price, did give small and independent refiners

some access to the benefits of price-contorlled old oil.

The buy/sell program, however, proved to be inequitable

for several reasons. Firstly, the firms entitled to buy the

highest volume of crude oil because of inadequate supplies

were often not necessarily the firms suffering the most

from a lack of low cost crude oil. Secondly, it often hap-

pened that a buyer obtained ernde oil from a seller who

was himself suffering from a lack of low cost erude oil.

Thirdly, since the buy/sell program was designed princi-

pally as a supply device for small independent refiners,

it did not seek to equalize the crude oil costs among those

refiners who were not qualified as buyers and suffered

from a lack of low cost crude oil. It was for these reasons,

among others, that the FEA designed what it ealls the

Cost Equalization Program (hereinafter CEP).

Under the CEP, the FEA issues to each domestic re-

finer a number of ‘‘entitlements’’? which is equal to that

refiner’s proportionate share of the total monthly old oil

35a

supply existing in the United States, with an upward ad-

justment in the number of entitlements issued to those

refiners who qualify for a ‘‘small refiner bias.’’? Addition-

ally in January, 1975, a limited number of eligible firms

(including refiners) who import residual fuel oil and home

heating oil (which includes no. 2-D diesel fuel) have been

issued entitlements based on the volume of such product

imported. (The FEA has removed importers from the

coverage of the CEP by regulation effective February 1,

1975.)

An ‘‘entitlement’’ is the right of a refiner owning the

entitlement to include one barrel of old oil in its adjusted

erude oil receipts in a particular month. A refiner with

more than its proportionate share of the national old oil

supply must buy a sufficient number of entitlements to

cover its excess barrels of old oil. A refiner with less than

its proportionate share of the national old oil supply (and

certain refiners who receive a small refiner bias in the

issuance of entitlements) will have an excess number of

entitlements which they must sell to other refiners. Those

eligible ‘‘importers’’ which have been issued entitlements

must similarly sell their entitlements to those refiners who

need them to cover the refiner’s excess supplies of old oil.

Because the purpose of the CEP is to remove the inequita-

ble conditions caused by the two-tier pricing system, the

FEA has set the price of entitlements for the month of Jan-

uary at $5.00 with reference to the current differential be-

tween controlled and uncontrolled crude oil prices (39 Fed.

Reg. 43103, December 10, 1974).

To determine the precise number of entitlements issu-

able to a refiner (a refiner’s proportionate share of the

total old oil supply in a given month), the FEA computes

an ‘‘adjusted national old oil supply ratio’’ for each month.

This ratio is the volume of old oil included in the aggre-

gate crude oil receipts for all domestic refiners, expressed

as a percentage of the total volume of crude oil runs to

36a

stills for all refiners for that month. For example, if the

total number of barrels of old oil was 200 million and the

total number of crude runs is 500 million barrels, the old

oil supply ratio is 2/5 or 40 percent. Thus, if all old oil

were equitably allocated among all domestic refiners, each

refiner would have crude oil runs which consist of 40

percent old oil.

Since, however, the FEA also issues entitlements to

certain importers of product and to small refiners in a

number adjusted upward in accordance with a ‘small

refiner bias’’, the total volume of old oil used to calculate

the national ratio of old oil must be reduced by the number

of entitlements so issued. Having established an adjusted

national old oil supply ratio, the FEA applies this ratio to

each domestic refiner’s volume of crude oil runs, and then

issues to each refiner a sufficient number of entitlements

to cover that percentage of its crude runs.

In addition to the number of entitlements it would other-

wise receive as a refiner, a small refiner receives a further

number of entitlements under a small refiner bias. Small

refiners with a daily average volume of crude oil runs to

stills of less than 175,000 barrels for a particular month

are issued additional entitlements for each day of that

month in a number equal to a designated percentage of

its average daily volume, with the percentage basis be-

coming greater as crude oil runs become smaller. 10 C.F.R.,

§ 211.67(2).

The FEA created the small refiner bias in recognition

of three facts. First, small refiners have relatively higher

operating costs and capital expenditures than other re-

finers. Second, small refiners have traditionally, and must

continue, to market their products at a lower price than

the products of the major branded refiners in order to

remain competitive. Third, there is a need to preserve the

historical position of small refiners.

Fe RR EE Oe A

37a

The FEA concluded that the CEP should not begin

and end with the refinery level because that would not

place some marketers or retailers in a competitive posi-

tion. Therefore, the FEA also designed its CEP so that

entitlements were made available to some firms which

import finished products such as no. 2 heating oil and

residual fuel oil.

All refiners and importers who seli entitlements are

required to count their proceeds on entitlement sales as

a reduction in crude oil or product costs. All refiners who

must buy entitlements are permitted to count the cost

thereof as an addition to ernde oil costs, FEA price regu-

lations further permit these increased crade oil costs to

be passed through to the ultimate consumer. It is not re-

quired that these higher costs be passed along; rather,

that decision is left to each refiner to make for himself.

On January 10, 1975, the FEA issued an order assign-

ing entitlements for refinery runs in the month of Novem-

ber, 1974, and requiring that certain refiners (including

Marathon) purchase specified numbers of entitlements

from other refiners (or importers) on or before January

31, 1975. This order was published in the Federal Register

January 13, 1975. 40 Fed. Reg. 2559 (1975). Marathon

was ordered to purchase from other refiners (or import-

ers) 721,622 entitlements at $5.00 each, a total of $3,608,110,

by January 31, 1975. The entitlements regulation provides

that FEA will issue entitlement purchase orders in each

subsequent month at least through August 31, 1975, the

date of expiration of the Act.

On January 13, 1975, Marathon filed applications and

supporting documents with FEA requesting (1) a stay of

Marathon’s obligations to purchase entitlements pursuant

to the CEP, and (2) exceptional relief from Marathon’s

purchase requirements under this program. On January

23, 1975, the Office of Exceptions and Appeals of the FEA

denied the applications for a stay.

38a

The Office of Exceptions and Appeals presently has un-

der active consideration, pursuant to expedited emergency

procedures (39 Fed. Reg. 43814 (1974)), the application

by Marathon for an exception and has already requested

supplemental information from Marathon.

Marathon has failed to establish that it is likely to suffer

irreparable harm in the event an injunction is denied, or

indeed any harm at all. The evidence tends to show that

as a result of the CEP, Marathon will be placed in a

slightly better position as respects crude oil costs and com-

petition than it was in before the price of domestic crude

oil was frozen.

The evidence tends to show that a delay in the implemen-

tation of the CEP caused by an injunction would force the

FEA to recalculate its whole entitlements program. Move-

over, it would continue the effects of a regulatory scheme

that even the government concedes has resulted in severe

inequities as to crude oil costs which appear to have fost-

ered an unhealthy lack of competition in the oil industry.

Marathon has not established that it will be unable to

pass along the costs of its entitlement purchases. In fact,

it concedes that it will be able to pass at least some of the

costs. Moreover, it also concedes that the CEP does not

threaten its existence, and offers no evidence to rebut the

FEA’s showing that further delay in implementation of

CEP will result in more damage to competition within the

oil industry.

Conc.Lusions or Law

This Court has jurisdiction of this action under § 5(a)(1)

of the EPAA, which makes 64 205-211 of the Economie

Stabilization Act of 1970 (hereinafter ESA) (reprinted as

a note to 12 U.S.C., § 1904) applicable to a regulation prom-

ulgated under §4(a) of the EPAA; and 6¢ 210(a) and

21l1(a) of the ESA.

me

39a

Section 211(d) of the ESA provides that:

«* * * no regulations of any agency exercising au-

thority under this title shall be enjoined or set aside

in whole or in part, unless a final judgment determines

that the issuance of such regulation was in excess of

the agency’s authority, was arbitrary or capricious, or

was otherwise unlawful under the criteria set forth

in [5 U.S.C., § 706(2)], and no order of such ageney

shall be enjoined or set aside in whole or in part, un-

less a final judgment determines that such order is

in excess of the agency’s authority, or is based upon

findings which are not supported by substantial evi-

dence.’’

The section further provides that:

‘‘fa] district court of the United States . ° : may

enjoin temporarily or permanently the application of

a particular reguiation or order issued under this

title to a person who is a party to litigation before it.”’

Section 211(e)(1) provides that:

‘‘fe]xcept as provided [in §211(d)] no interlocu-

tory or permanent injunction restraining the enforce-

ment, operation, or execution of this title, or any regu-

lation or order issued thereunder, shall be granted by

any district court of the United States or judge there-

of.’’

Thus, under the foregoing, this Court may enjoin the

CEP as to Marathon alone, only if it finds that the regula-

tion was issued in excess of the FEA’s authority, or is

arbitrary or capricious, or if the regulation was adopted

without procedure required by law, or if it is unsupported

by substantial evidence. The Court will treat each of these

grounds in turn.

40a

Marathon contends that the CEP exceeds the FEA’s

authority under §4(a) of the EPAA because the CEP

does not allocate oil. Instead, it is argued, the CEP is an

administrative subsidy program which requires some re-

finers to finance other refiners and importers in their pur-

chases of crude oil. Thus, since the CEP is not an alloca-

tion program, it must be invalid.

The Court does not find this argument well taken. It

seems to suggest, as the FEA points out, that the CEP

cannot qualify as an allocation program simply because it

does not require the physical transfer of crude oil among

refiners. Such a physical transfer requirement would in-

deed seem to have added more administrative burdens as

well as increased costs to an already burdened industry

producing an already very expensive product—to say noth-

ing of the problems for FEA. Hence, the CEP is clearly

an allocation program since it achieves the same result that

actual transfers of crude oil would have.

Moreover, it is clear from the legislative history of the

EPAA that the Congress intended the President (and the

FEA) to have a great deal of flexibility in achieving the

goals it established in 4 4(b). The Conference Committee

Report emphasized that:

‘** * * the President is to retain full authority to

require allocation at the producer level on a national,

regional, or case-by-case basis whenever he determines

it is necessary to attain the objectives of the Act. It

is expressly intended to give the President flexibility

to act selectively. Accordingly, he may apply controls

to large but not small producers—thus avoiding ad-

ministrative complexity.’’

2 U.S. Code Cong. & Adm. News, 1973, at 2699.

Marathon’s contention that the CEP exceeds the FEA’s

authority to set prices under the EPAA is also without

4la

merit. The Senate Committee Report on the extension of

the EPAA made express reference to the FEA’s power to

adopt a program removing the inequities in the prices of

erude oil.

‘‘The FEA can, of course, * * * change existing price

controls even if the Act is extended for a brief period.

The [EPAA] includes authority for such actions. For

example, it provides ample authority for the FEA to

institute a system of price equalization to provide that

all segments of the industry benefit from lower-priced

domestic oil. The Committee was urged to amend the

Act to achieve this objective but has been assured that

FEA intends to institute a price equalization program

under existing authority in the immediate future.’’ [S.

Rep. No. 93-1082, Comm. on Interior and Insular Af-

fairs, 93d Cong., 2d Sess. at 2, Aug. 9, 1974.].

The House report echoes the Senate’s with strikingly sim-

ilar language:

‘Moreover, the [EPAA] includes adequate author-

ity to permit the FEA to institute a system of price

equalization applicable to crude oil, residual fuel oil

and refined products to eliminate the regional and

competitive inequities which result from a depend-

ence upon the high-cost imported oils and petroleum

products. The FEA’s stated commitment to Subcom-

mittee Chairman Macdonald during the hearings on

this bill to move promptly on a price equalization pro-

gram has convinced the Committee that specific amend-

ments to the Act to compel such action may prove to

be unnecessary.’’ [H. Rep. No. 93-1443, 93d Cong., 2d

Sess. at 3 (1974).]

Thus, if the EPAA fails to provide adequate authority to

enact the CEP, the Congress was mysteriously unaware

of it.

42a

Marathon’s contention that the FEA authority to im-

pose this regulation is limited to perieds of erude oil

searcity such as accompanied the Arab Oil embargo has

been effectively undermined by the decision in Union Oil

Co. v. Federal Energy Administration, No. CV 74-1943-

MML (C.D. Cal. 7-25-74). There the court said:

‘**In contending that the Emergency Petroleum Allo-

cation Act authorized petroleum allocation only dur-

ing the period of physical shortages, the plaintiff asks

the court to imply a limitation which is not expressed

in the Act but is merely to be inferred from some

language in the Act. But the Act itself does not have

express language dealing with the occasions in which

the power to make regulations will end. * * * But Con-

gress had some concern about the structure of the pe-

troleum industry and of the welfare of the independent

refiners at times other than the period of shortages

brought on by the Arab oil embargo. Certainly the

shortages gave impetus to the passage of the Act and

provided the oceasion for its passage, but the Act is

not limited to the problems of physical shortages. Con-

sequently, the Court does not think that the end of the

physical shortages spells the demise of the power to

allocate petroleum.’’

Marathon’s contentions that the EPAA empowers the

the FEA to adopt only one regulation is so plainly frivo-

lous as not to require extended discussion. The short an-

swer is that 44(g)(1) of the EPAA specifically permits

the President to amend the regulation promulgated pur-

suant to §4(a) so long as the amended regulation meets

the statutory requirements.

It is thus the conelusion of this Court that the CEP is

within the statutory authority of the EPAA and may not

be enjoined on the ground that it exceeds such authority.

43a

Next plaintiff contends that the CEP is arbitrary, ca-

pricious and unsupported by substantial evidence. Here

the issue is not whether the Court agrees with the FEA’s

decision to adopt the CEP or whether the CEP is the best

answer possible to the problems identified by the FEA.

See, Pacific Coast Meat Job. Ass’n v. Cost of Living Coun-

cil, 481 F.2d 1388 (T.E.C.A. 1973). The only issue here is

whether the decision of the FEA had a rational basis, given

all the facts. Very clearly, the Court’s conclusion must be

in favor of the FEA. See, Mandel v. Simon, 493 F.2d 1239

(T.E.C.A. 1974).

To conclude otherwise would be to ignore the mass of

evidence adduced by the FEA in this Court. There can be

no question that the FEA’s selection of refiners as buyers

or sellers of entitlements on the basis of their old oil sup-

plies was reasonable and further the various, if conflicting

objectives found in § 4(b) of the EPAA.

As has already been found by this Court the two-tier

pricing system on crude oil which the FEA maintains in

order to minimize the inflationary impact of world-wide

oil price increases, while stimulating domestic production,

has had an undesirable side effect. Because old oil is price-

controlled at approximately $5.25 a barrel, and for no other

reason, refiners having more than their proportionate share

of the national old oil supply have lower input costs. Re-

finers having less than their proportionate share have

higher input costs since they must rely more heavily on

high-priced, uncontrolled, domestic or foreign crude oil

that sells, respectively, at approximately $10.00 and $11.25

a barrel. Hence, refiners with greater access to old oil

receive a competitive pricing advantage in marketing their

products based solely on FEA’s two-tier pricing system,

an advantage which did not exist prior to the imposition of

the two-tier system and which would cease to exist if FEA

were immediately to remove its ceiling price on old oil.

The mere fact that three major integrated refiners which

44a

have less than their proportionate share of old oil will be

entitlement sellers, while a few small refiners will be buy-

ers, does not make the program irrational. Rather, the pro-

gram merely places the entire petroleum industry in the

competitive situation that existed prior to the two-tier

pricing system.

This Court will not belabor the point. Marathon’s many

claims of irrationality seek to entice this Court to take

on a role for which it is ill-suited. Many of Marathon’s

contentions on this point would require this Court very

nearly to substitute its judgment for that of the very

agency best equipped to deal with this nation’s problems

with competition among refiners of crude oil. See, Overton

Park v. Volpe, 401 U.S. 402, 416 (1971) (Court may not

substitute its judgment for agency’s.) Finding an adequate

basis in reason for the FEA’s regulation, the Court will

not enjoin its effectiveness as to Marathon.

It should also be noted that the Court’s own Findings

of Fact preclude injunctive relief. Marathon failed to show

that irreparable harm would surely result if an injunction

was not granted. Of course, the necessity of showing ir-

reparable harm when secking such extraordinary relief is

well established and needs no citation of authority.

Lastly, the argument that the CEP was adopted without

the proper procedures required by the Administrative Pro-

cedure Act is patently without merit. Marathon and every

other interested party had more than adequate notice and

ample opportunity to make its views known as to the FEA’s

proposed action. Clearly the Inflationary Impact State-

ment required by Executive Order No. 11,821, issued No-

vember 27, 1974 (39 Fed. Reg. 41501, November 29, 1974),

was not a prerequisite to this regulation which was pro-

posed initially on August 28, 1974.

As to Marathon’s constitutional challenge, i.e., that the

CEP constitutes a taking of property for a private purpose

ee

45a

without just compensation contrary to the Due Process

Clause of the Fifth Amendment, it is clear that this Court

is without power to decide the issue. See, § 211(¢)(2) of

the ESA. However, this Court may certify such a question

to the Temporary Emergency Court of Appeals if it finds

it to be substantial. Such a question is not substantial if it

is plainly without merit or if previous Supreme Court de-

cisions appear to foreclose the subject. See, Delaware

Valley Apartment House Owner’s Ass’n v. United States,

350 F. Supp. 1144 (E.D. Pa. 1972), aff’d 482 F.2d 1400

(T.E.C.A. 1973). :

Previous decisions of the Temporary Emergency Court

of Appeals appear to indicate that this argument is plainly

without merit. Western States Meat Packers Ass’n v.

Dunlop, 482 F.2d 1401 (T.E.C.A. 1973); Local Union No.

11, IBEW v. Boldt, 481 F.2d 1392 (T.E.C.A. 1973). Hence,

this Court finds no substantial constitutional question and

declines to certify such to the Temporary Emergency Court

of Appeals.

For all of the foregoing reasons, plaintiff’s motion for

a preliminary injunction is denied. The motion to certify

a constitutional question is also denied. The cause is con-

tinued for such further proceedings as may be necessary.

Ir Is SO ORDERED.

/s/ Nicuotas J. WALINSKI

United States District Judge

Toledo, Ohio.

January 31, 1975.

In conformity with Rule 77 (d) F.R.C.P. please take

notice that the following order of judgment was entered

in this court on January 31, 1975.

Mark Schlachet, Clerk

46a

Regulations Involved

10 C.F.R. § 211.62 contains the following definitions:

> * > - = . > * . *

** Adjusted crude oil receipts’? means the crude oil re-

ceipts of a refiner in a particular month the composition of

which has been adjusted to reflect any invoice which is

received in that month for crude oil (including crude oil

sold under § 211.65) delivered to that refiner in any pre-

vious month (excluding, however, months prior to No-

vember 1974), and which has the effeét of increasing or

decreasing the volume of old oil received by that refiner

in such previous month. ,

** Adjusted national old oil supply ratio’? means, for a

particular month, the volume of old oil included in the

aggregate adjusted crude oil receipts for all refiners, ex-

pressed as a percentage of the sum of (a) the total volume

of the « ‘ude oil runs to stills for all refiners for that month

and (b) thirty percent (80% ) of the total volume of eligible

imports by eligible firms for that month. Such volume of

old oil shall be decreased by a number of barrels of old

oil equal to the number of entitlements issuable to small

refiners under § 211.67(e).

‘Crude oil receipts’? means, as to a particular refiner,

the volume of crude oil (a) booked into its refineries in

accordance with accounting procedures generally accepted

and consistently and historically applied by the refiner eon-

cerned, for its own account or for the account of a firm

other than a refiner or (b) if not previously so booked into

its refineries, delivered by that refiner for its account to

another refiner pursuant to a processing agreement with

that other refiner. Crude oil receipts shall not include erude

oil received by a refiner for the purpose of processing at

its refineries for the account of another refiner. A par-

ticular crude oil receipt shall be deemed to have occurred

47a

when the related cost is booked into refinery inventory in

accordance with accounting procedures generally accepted

and consistently and historically applied by the refiner con-

cerned, whether or not such erude oil has been actually

received by that refiner, except that crude oil delivered by

one refiner to another refiner pursuant to a processing

agreement will be deemed to have been delivered by the

delivering refiner to the other refiner when the risk of loss

passes to the other refiner under the particular processing

agreement or when the crude oil is received at the refinery

of the other refiner, whichever occurs first. Crude oil which

has been added by a refiner to its inventory and which is

thereafter sold or otherwise disposed of without processing

for the account of that refiner shall be deducted from its

crude oil receipts at the time when the related cost is de-

ducted from refinery inventory in accordance with account-

ing procedures generally accepted and consistently and his-

torically applied by the refiner concerned. The volume of

old oil ineluded in a refiner’s crude oil receipts shall be

evidenced by and consistent with invoices received with

respect to such crude oil receipts.

‘‘Eligible firm’’ means, as to imports of eligible prod-

ucts, a firm (including a refiner) that has received, as to

the particular eligible product imported and as to the PAD

District in which the import takes place, an import alioca-

tion not subject to a license fee under section 12, 28 or 30

of Oil Import Regulation I (revision 5), as amended (32A

CFR OT Reg. 1-12, 23 and 30), or a firm which would other-

wise qualify for such an import allocation under section

12 or 30 of such Regulation if (a) that firm were in the

business in PAD District I of selling the eligible product

concerned, (b) that firm had received an allocation of im-

ports of No. 2 heating oil or No, 2-D diesel fuel in the al-

location period beginning prior to January 1, 1973, or (iii)

that firm were not a refiner and/or a petrochemical pro-

ducer.

4Sa

‘*Eligible products’’ means residual fuel oil, No. 2 heat-

ing oil and No. 2-D diesel fuel imported into the United

States, except that imports into United States customs ter-

ritory from United States possessions, territories or for-

eign trade zones shall not be considered eligible products.

‘*Entitleme:..’? means, for a particular month, the right

of a refiner owning the entitlement to include one barrel

of old oil in its adjusted crude oil receipts in such month.

The issuance and transfer of entitlements shall be evi-

denced on records maintained by the FEA.

‘‘New crude petroleum’? means new crude petroleum as

defined in § 212.72 of this chapter.

‘*No. 2 heating oil’? means heating oil grade No. 2 as

defined in American Society for Testing and Materials

(ASTM) D396-71.

‘*No. 2-D diesel fuel’? means diesel fuel grade No. 2 as

defined in American Society for Testing and Materials

(ASTM) D975-71.

“Old oil’? means old crude petroleum as defined in

§ 212.72 of this chapter.

‘Old oil supply ratio’? means, for a particular month,

the number of barrels of old oil included in a refiner’s ad-

justed crude oil receipts, expressed as a percentage of the

volume of that refiner’s crude oil runs to stills for such

month.

* * * * . * * * * .

‘*Released crude petroleum’? means released crude pe-

troleum as defined in § 212.72 of this chapter.

10 C.F.R. 5 211.66 Reporting requirements.

. * . * * * * * * *

49a

(h) Monthly report. On or prior to the twenty-eighth

day of each month, commencing with the month of Decem-

ber 1974, each refiner shall file with the FEA a report

certifying the following:

(1) The estimated volume (to the best of the knowledge

of the certifying officer of old oil included in the erude oil

receipts of that refiner for the immediately preceding

month.

(2) Any permitted or required adjustments to the esti-

mated volume of old oi! included in the crude oil receipts

of that refiner for the immediately preceding month.

(3) The volume of crude oil runs to stills of that refiner

for the immediately preceding month, taking into account,

and specifying the amount of, the adjustments provided for

in § 211.67(d).

(4) Such other information as the FEA may request.

(i) Monthly transaction report. On or prior to the tenth

day of each month, commencing with the month of Feb-

ruary 1975, each refiner and each eligible firm shall file

with the FEA a report certifying its purchases and sales

of entitlements for the third month prior to the month in

which the report is filed, except that if an eligible firm was

not issued any entitlements for a month, no filing of a trans-

action report with respect to that month shall be made.

(j) Monthly report by eligible firms. On or prior to the

twenty-eighth day of each month, commencing with the

month of December 1974, each eligible firm that has im-

ported an eligible product in the immediately preceding

month shall file with the FEA a report certifying the

following: |

(1) The identity, volume and ports of origin and entry

of any eligible products imported by that eligible firm in

the immediately preceding month.

50a

(2) Such other information as the FEA may request.

(k) Affidavit for eligible firms. Each firm that claims

to be an eligible firm shall submit to the FEA within

twenty-eight (28) days following the first month in which

that firm has imported an eligible product as to which the

issuance of entitlements is sought an affidavit setting forth

the factual basis for its claim to be classified as an eligible

firm.

10 C.F.R. § 211.67 (Dee. 4, 1974) provided as follows:

Ailocation of old oil.

(a) Issuance of entitlements. (1) For each month, com-

mencing with the month of November 1974, each refiner

shall be issued entitlements by the FEA to include in its

adjusted crude oil receipts for that month a specific num-

ber of barrels of old oil which will result in an old vil supply

ratio for that refiner equal to the adjusted national old oil

supply ratio for that month, subject to the entitlement

adjustment for small refiners set forth in paragraph (e)

of this section.

(2) Refiners to which entitlements shall be issued under

this section shall include all refiners classified as refiner-

buyers or refiner-sellers as of December 1, 1974 for pur-

poses of § 211.65. Any refiner that is not so classified, or the

refinery capacity of which is not certified by the FEA for

purposes of § 211.65, shall apply to the FEA for certifica-

tion of its refinery capacity for purposes of qualifying to

receive entitiements under this section. With respect to

the granting of any such application for certification, the

FEA shall consider the factors set forth in § 211.65(b) (v)

and (vi).

(5) For each month, commencing with the month of No-

vember 1974, each eligible firm that has imported an eligible

product in that month shall be issued a number of entitle-

ments equivalent to thirty percent (30%) of the number of

5la

entitlements that would be received by a refin (without

giving effect to the provisions of § 211.67(e)) in that month

with respect to inclusion of a number of barrels of crude

oil in that refiner’s crude oil runs to stills equal to the

number of barrels of that eligible product imported by that

eligible firm. An eligible product is imported for purposes

of this paragraph (a) (3) in the month in which the product

physically enters the United States.

(b) Required purchases of entitlements by refiners. For

each month, commencing with the month of November 1974,

each refiner that bas been issued fewer entitlements for

that month than the number of barrels of old oil included

in its adjusted crude oil receipts shall purchase a number

of entitlements effective for that month equal to the differ-

ence between the number of barrels of old oil included in

that refiner’s adjusted erude oil receipts for that month

and the number of entitlements issued to and retained by

that refiner. Entitlement purchases required under this

paragraph (b) with respect to a particular month shall

be effected by the close of the second month following that

month.

(c) Refiners and other firms with excess entitlements.

For each month, commencing with the month of November

1974, each refiner that has been issued a greater number

of entitlements for that month than the number of barrels

of old oil included in its adjusted erude oil receipts shall

sell such excess entitlements and any eligible firm (other

than a refiner) that has been issued entitlements shall sell

such entitlements.

(d) Adjustments to volume of crude oil runs to stills.

(1) A refiner’s volume of crude oil runs to stills shall (i)

inelude (A) the volume of crude oil processed by another

refiner for that refiner pursuant to a processing agreement

and (B) the volume of erude oil processed by that refiner

for a person other than a refiner pursuant to a processing

agreement, and (ii) exclude the volume of crude oil proc-

52a

essed by that refiner for another refiner pursuant to a

processing agreement.

(2) The volume of a refiner’s erude oil runs to stills for

purposes of calculating its old oil supply ratio and the

adjusted national old oil supply ratio shall be reduced by

that refiner’s volume of export sales in that month of re-

fined petroleum products (except refined lubricating oils),

including sales to a domestic purchaser which certifies the

product is for export.

(e) Entitlement adjustment for small refiners. In addi-

tion to the number of entitlements issuable under para-

graph (a) of this section, each small refiner with a daily

average volume of crude oil runs to stills of less than

175,000 barrels for a particular month shall be issued addi-

tional entitlements for each day of that month equal to

the number of barrels obtained by applying the following

applicable percentage to the daily average volume of that

small refiner’s crude oil runs to stills for that month; (i)

for daily average volumes of erude oil runs to stills of

100,000 to 175,000 barrels, the applicable percentage is ob-

tained by multiplying the difference between the reported

daily average volume of crude oil runs to stills (in thou-

sands of barrels) and 175 by a factor of .0101; (ii) for

daily average volumes of crude oil runs to stills of 30,000

to 100,000 barrels, the applicable percentage is obtained

by multiplying the difference between the reported daily

average volume of crude oil runs to stills (in thousands

of barrels) and 100 by a factor of .0214, and by adding

76% to the resulting percentage; (iii) for daily average

volumes of crude oil runs to stills of 10,000 to 30,000 bar-

rels, the applicable percentage is obtained by multiplying

the difference between the reported daily average volume

of crude oil runs to stills (in thousands of barrels) and 30

by a factor of .506, and by adding 2.26 to the resulting per-

centage; and (iv) for daily average volumes of crude oil

53a

runs to stills of zero to 10,000 barrels, the applicable per-

centage is 12.38%.

(f) Transactions under § 211.65. (1) Each sale by a re-

finer-seller under § 211.65 shall be decmed to include a vol-

ume of old oil proportionate to the volume of old oil in-

eluded in that refiner-seller’s crude oil receipts (in the

PAD Districts or District the erude oil deliveries in which

determine the price of the sale) in the month in which the

sale is made. Any volumes of old oil so ineluded in any sale

under § 211.65 shali be included in the crude oil receipts

of the refiner-buyer concerned. As to each such sale, each

refiner-seller shall eevtify to the refiner-buyer the vo.ume

of old oil included in the volume of crude oil sold within

twenty-five (25) days following the month in which the

crude oil is delivered to or for the account of the refiner-

buyer in accordance with the provisions of § 212.131 of

part 212.

(2) In determining the weighted aver* “e price of all

erude oil delivered to a refiner-seller i month in the

specified PAD District or Districts pursuant to § 212.94

of part 212, the cost of any required purchases or revenues

from any sales of entitlements by that refiner-seller shall

not be taken into account.

(g) Exchange of crude oil. In any exchange of crude oil

in which only quality and location differentials are given

effect in the caleulation of the exchange ratio, or in any

matching purchase and sale transaction which has the

same effect as such an exchange, no volumes of old oil shall

be deemed to have been transferred. Any volumes of old

oil delivered pursuant to any such exchange or transaction

shall be considered as having been retained by the refiner

that has exchanged away or sold such volume, regardless

of the volume of erude oil received or purchased by that

refiner in such an exchange or transaction.

5ta

(h) Averaging of crude oil receipts. Upon application

by a refiner in accordance with the procedures established

under Subpart G of Part 205 of this chapter within twenty

(20) days following the close of 2 month, the FEA may

adjust the crude oil receipts of that refiner for that month

to permit the portion of such erude oil receipts specified

by the FEA to be included in the erude oil receipts of that

refiner for one or more subsequent months, if the volume of

crude oil receipts in that month is significantly dispropor-

tionate to the volume of that refiner’s erude oil runs to

stills for that month due to shutdowns or other mechanical

failures resulting in a fifty percent (50) or greater portion

of that refiner’s refinery capacity not having been operable

for the duration of that month.

(i) Issuance and transfer of entitlements. (1) The first

month with respect to which entitlements shall be issued js

November 1974. The entitlements for the month of Novem-

ber 1974 shall be issued by the FEA on January 10, 1975,

pursuant to the notice specified in subparagraph (2) below.

As to each month subsequent to November 1974, FEA shall

issue entitlements pursuant to a notice published 40 days

after the close of that month.

(2) Each notice published by the FEA evidencing the

issuance of entitlements under this section shall specify

as to a particular month the adjusted national old oil

supply ratio, the name of each refiner and other eligible

firm to which entitlements have been issued, the number of

entitlements issued to each such refiner or other firm, the

number of barrels of old oil included in each refiner’s ad-

justed crude oil receipts and the price at which or price

range within which entitlements shall be sold.

(3) No transfer of an entitlement shall be effective if

made to (i) any person other than a refiner, or (ii) any

Se

Da

refiner that is not purchasing such entitlement to fulfill

such refiner’s obligations under paragraph (b) of this

section.

(4) The price at which entitlements shall be sold and

purchased shall be fixed by the FEA for each month. Such

price may be fixed in terms of a price range in which en-

titlement transactions shall be effected or in terms of a

single price at which all entitlement transactions shall take

place. Such price or price range shall be fixed by the FEA

with reference to the differential between the weighted

average prices for old oil and the weighted average prices

of new and released crude petroleum, imported crude oil

and erude oil produced from stripper wells.

(j) Failure to consummate transactions. The FEA may

direct refiners that have not purchased the required num-

ber of entitlements under paragraph (b) of this section

for a particular month to purchase such required number

of entitlements at a price specified by the FEA from any

refiner or eligible firm that has entitlements for such month

available for sale. The FEA may direct refiners or eligible

firms that have entitlements available for sale to sell such

entitlements at a price specified by the FEA to refiners

that have not purchased their required number of entitle-

ments under paragraph (b) of this section.

(k) Certification of old oil by non-refiners. Within

twenty (20) days following each month commencing with

the month of November 1974, each person other than a

refiner that has delivered crude oil to a refiner for process-

ing for the account of such person pursuant to a processing

agreement in that month shall certify to that refiner the

volume of old oil contained in the crude oil so delivered

to that refiner.

(1) Adjustments to product costs —(1) Refiners. The

cost of entitlements purchased in a particular month pur-

suant to this section by refiners shall be added to the cost

d6a

of crude petroleum purchased or landed in that month

(which is the period ‘‘t’’ (the month of measurement), for

purposes of calculating the increased costs to be applied

to product prices in the following month under the ‘‘A’”’

factor of the general formulae of § 212.83(c)(2) of this

chapter). The sales revenues from entitlements sold in a

particular month pursuant to this section by refiners shall

be subtracted from the cost of evude petroleum or eligible

product purchased or landed in that month (which is the

period ‘‘t’’ (the month of measurement), for purposes of

calculating the increased costs to be applied to product

prices in the following month under § 211.83(c) of this

chapter) as follows:

(i) The sales revenues from entitlements which are is-

sued for crude oil which are sold in a particular month

shall be subtracted from the total cost of crude petroleum

purchased or landed in that month (which is the period

‘*t’’ (the month of measurement), for purposes of caleu-

lating the increased costs to be applied to all product prices

in the following month under the ‘‘A,”’ factor of the gen-

eral formulae of § 212.83(c)(2)).

(ii) The sales revenues from entitlements which are

issued for residual fuel oil which are sold in a particular

month shall be subtracted from the total cost of residual

fuel oil purchased or landed in that month (which is the

period ‘‘t’? (the month of measurement), for purposes of

calculating the increased costs to be applied to prices of

covered products other than special products under the

‘*Bit’’ factor of the formula for covered products other

than special products of § 212.83(¢) (2) (ii)).

(iii) The sales revenues from entitlements which are

issued for No. 2 heating oil or No. 2-D diesel fuel which

are sold in a particular month shall be subtracted from the

total cost of No. 2 heating oil or No. 2-D diesel fuel pur-

chased or landed in that month (which is the period “t’’

(the month of measurement), for purposes of calculating

57a

the increased costs to be applied to prices for special prod-

ucts where (i=1) under the ‘‘Bit’’ factor of the general

formula of § 212.83(c)(2)(i) for special products where

(i=1)). F

(2) Resellers and Retailers. The sales revenues from en-

titlements sold pursuant to this section by resellers or re-

tailers shall be subtracted from the cost of the product in

inventory for which the entitlements were issued, so as to

reduce the weighted average unit cost of that product in

inventory computed pursuant to § 212.92 of this chapter.

(3) Use of eligible products entitlements by refiners to

which they are issued. A refiner that is issued entitlements

with respect to eligible products shall account for the use of

those entitlements to include old oil in its erude oil reeeipts

as if it had purchased such entitlements so as to incur an

increased cost of crude oil pursuant to subparagraph (1)

above and as if it had sold such entitlements so as to reduce

its cost of the eligible product for which the entitlements

were issued, pursuant to subparagraphs (1)(ii) and (1)

(iii) of this paragraph.

(4) Timing. The date of purchase or sale of entitlements

for purposes of determining the date on which a cost or a

cost reduction is incurred under 4 212.83(c) or § 212.93 of

this chapter shall be the date on which the transaction is re-

ported to have taken place on the monthly transaction re-

port filed with the FEA under paragraph (i) of § 211.66.

Drective oF January 10, 1975

Allocation of Old Oil; Entitlement Notice

Pursuant to the authority of the Emergency Petroleum

Allocation Act of 1973, Pub. L. 93-159, the Federal Energy

Administration has established the Old Oil Entitlements

Program, and in accordance with the provisions of 10 CFR

211.67, the notice specified in § 211.67(i) is hereby pub-

lished.

5Sa

Based on reports submitted to FEA by refiners and eligi-

ble firms as to crude oil receipts, crude oil runs to stills and

eligible product imports for November 1974 and an applica-

tion of the entitlement adjustment for small refiners pro-

vided in 10 CFR 211.67(e), the adjusted national old oil

supply ratio for November 1974 is caleulated to be .4105.

The issuance of entitlements for the month of November

1974 to refiners and eligible firms is set forth as an Appen-

dix to this notice. The Appendix lists the name of each re-

finer and other eligible firm to which entitlements have been

issued, the number of entitlements issued to each such re-

finer or other firm, and the number of barrels of old oil in-

cluded in each refiner’s adjusted crude oil receipts.

Pursuant to 10 CFR 211.67(i)(4) and as fixed by FEA

notice (39 FR 4310& December 10, 1974), the price at which

entitlements issued for the month of November 1974 shall be

sold and purchased will be $5. In accordance with 10 CFR

211.67(b), each refiner that has been issued fewer entitle-

ments for the month of November 1974 than the number of

barrels of old oil included in its adjusted crude oil receipts

is required to purchase a number of entitlements for the

month of November 1974 equal to the difference between the

number of barrels of old oil included in that refiner’s ad-

justed crude oil receipts for that month and the number of

entitlements issued to and retained by that refiner. Refiners

which have been issued a number of entitlements for the

month of November 1974 in excess of the number of barrels

of old oil included in the adjusted ernde oil receipts for No-

vember 1974, and eligible firms which have been issued en-

titlements for November 1974, shall seli such excess entitle-

ments to refiners required to purchase entitlements.

The listing of entitlement issuances contained in the Ap-

pendix reflects the application of Special Rule No. 3 (39 FR

43814, December 19, 1974) which operates to relieve certain

small refiners from the requirement to purchase entitle-

ments for the first 30,000 barrels per day of their daily

59a

average volume of crude oil runs to stills for the month

of November 1974. Accordingly, for those small refiners

whose purchase requirements were totally exempted pur-

suant to Special Rule No. 3, the Appendix specifies issuance

of an incremental number of entitlements equa! te the num-

ber such refiners would have otherwise been required to

purchase. The total number of entitlements so exempted

from the purchase requirements of 10 CFR 211.67(b) is

4,187,997. A factor of .7675 has been applied to the number

of entitlements available for sale by each refiner and eligi-

ble firm, which has the effect of reducing the total number

of entitlements available for sale by an amount equal to

the total purchase requirements exempted pursuant to Spe-

cial Rule No. 3.

;

Refiners which have reported no volumes of old oil re-

ceipts and erude oil runs to stills for November 1974, and

eligible firms which have filed reports indicating no eligible

product imports for this month have not been included in

the listing contained in the Appendix.

The total volume of entitzements required to be pur-

chased and sold under this notice is 13,825,979.

Entitlement purchases required under 10 CFR 211.67(b)

for the month of November must be effected by January 31,

1975. On or prior to February 10, 1975, each refiner and eli-

gible firm which has been issued entitlements for November

shall file with FEA the monthly transaction report specified

in 10 CFR 211.68(i) certifying its purchases and sales of

entitlements for the month of November. FEA will mail

monthly transaction report forms for November 1974 to re-

porting firms in January 1975. Refiners and eligible firms

which have been unable to locate firms for required entitle-

ment transactions by January 25, 1975 may contact FEA at

902-634-7610 to obtain assistance in locating a firm with out-

standing purchase or sale requirements. For refiners and

eligible firms that have failed to consummate entitlement

~ sueduoy [IO 4eqPpeg

10 CFR 211.67(j).

Issued in Washington, D.C., January 10, 1975.

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74a 75a

entitlements issued to and retained by that refiner.

Entitlement purchases required under this paragraph

(b) with respect to a particular month shall be effected

10 C.F.R. § 211.67, as amended by 39 Fed. Reg. 44710, 40

Fed. Reg. 6768, 10445, 13303, 14738, 28447, 40818, provides

as follows:

Allocation of Old Oj

(a) Issuance of entitlements.

(1) For each month, commencing with the month of

November 1974, each refiner shall be issued entitle-

ments by the FEA to include in its adjusted crude oil

receipts for that month a specific number of barrels

of old oil which will result in an old oil supply ratio for

that refiner equal to the adjusted national old oil sup-

ply ratio for that month, subject to the entitlement

adjustment for small refiners set forth in paragraph

(e) of this section.

(2) Refiners to which entitlements shall be issued

under this section shall include all refiners classified

as refiner-buyers or refiner-sellers as of December 1,

1974 for purposes of § 211.65. Any refiner that is not

so classified, or the refinery capacity of which is not

certified by the FEA for purposes of § 211.65, shall

apply to the FEA for certification of its refinery ca-

pacity for purposes of qualifying to receive entitle-

ments under this section. With respect to the granting

of any such application for certification, the FEA shall

consider the factors set forth in § 211.65(b)(v) and

(vi).

(b) Required purchases of entitlements by refiners.

For each month, commenci:¢ with the month of No-

vember 1974, each refiner that has been issued fewer

entitlements for that month than the number of bar-

rels of old oil included in its adjusted erude oil receipts

shall purchase a number of entitlements effective for

that month equal to the difference between the number

of barrels of old oil ineluded in that refiner’s adjusted

erude oi] receipts for that month and the number of

by the close of the second month following that month.

(c) Refiners and other firms with excess entitle-

ments. For each month, commencing with the month of

November 1974, each refiner that has been issued a

greater number of entitlements for that month than

the number of barrels of old oil included in its ad-

justed crude oil receipts shall sell such excess entitle-

ments and any eligible firm (other than a refiner) that

has been issued entitlements shall sell such entitle-

ments.

(d) Adjustments to volume of crude oil runs to

stills.

(1) A refiner’s volume of crude oil runs to stills

shall (i) inelude (A) the volume of crude oil processed

by another refiner for that refiner pursuant to a proc-

essing agreement and (B) the volume of crude oil

processed by that refiner for a person other than a

refiner pursuant to a processing agreement, and (ii)

exclude the volume of crude oil processed by that re-

finer for another refiner pursuant to a processing

agreement.

(2) The volume of a refiner’s crude oil runs to stills

for purposes of calculating its old oil supply ratio and

the adjusted national old oil supply ratio shall be re-

duced by that refiner’s volume of export sales in that

month of refined petroleum products (except refined

lubricating oils), including sales to a domestic pur-

chaser which certifies the product is for export.

(3) The volume of a refiner’s crude oil runs to stills

in a particular month for purposes of calculating its

old oil supply ratio and the adjusted national old oil

76a

supply ratio shall include the total number of barrels

of plant condensate and the total number of barrels of

synthetic crude oil made from tar sands which are

imported from Canada and are utilized in that month

as inputs to distillation units by a refiner, measured in

accordance with the Bureau of Mines Form 6-1300-M.

Neither plant condensate nor synthetic crude oil made

from tar sands which are imported from Canada shall

be eligible for inclusion in the volume of a refiner’s

crude oil runs to stills under this subparagraph (3)

unless payment has been made in accordance with

Presidential Proclamation No. 3279 of any import li-

cense fees applicable to crude oil as defined for pur-

poses of this section, which is imported for refining.

(e) Entitlement adjustment for small refiners. In

addition to the number of entitlements issuable under

paragraph (a) of this section, each small refiner with

a daily average volume of crude oil runs to stills of

less than 175,000 barrels for a particular month shall

be issued the following number of additional entitle-

ments for each day of that month: (1) for each small

refiner with a daily average volume of crude oil runs

to stills of 100,000 to 175,000 barrels, 1,258 entitlements

less the number of entitlements obtained by multiply-

ing the difference between that small refiner’s daily

average volume of crude oil runs to stills (in thou-

sands of barrels) and 100 by 16.7733; (2) for eaeh

small refiner with a daily average volume of crude oil

runs to stills of 30,000 to 100,000 barrels, 1,690 entitle-

ments less the number of entitlements obtained by mul-

tiplving the difference between that small refiner’s

daily average volume of crude oil runs to stills (in

thousands of barrels) and 30 by 6.1714; (3) for each

small refiner with a daily average volume of crude oil

runs to stills of 10,000 to 30,000 barrels, 1,238 entitle-

ments plus the number of entitlements obtained by

multiplying the difference between that small refiner’s

———

77a

daily average volume of crude oil runs to stills (in

thousands of barrels) and 10 by 22.6; and (4) for each

small refiner with a daily average volume of crude oil

runs to stills of zero to 10,000 barrels, 123.8 entitle-

ments for each 1,000 barrels of that small refiner’s

daily average volume of crude oil runs to stills.

(f) Transactions under § 211.65. (1) Each sale by a

refiner-seller under § 211.65 shall be deemed to include

a volume of old oil proportionate to the volume of old

oil included in the deliveries of crude oil to that refiner-

seller that determine the price at which the sale is

made under 4 212.94 of part 212. Any volumes of old

oil so included in any sale under § 211.65 shall be re-

flected in the crude oil receipts of the refiner-buyer

concerned. As to each such sale, each refiner-seller shall

certify to the refiner-buyer the volume of old oil in-

cluded in the volume of crude oil sold within twenty-

five (25) days following the month in which the crude

oil is delivered to or for the account of the refiner-

buyer in accordance with the provisions of § 212.131

of part 212.

(2) In determining the weighted average price of

all crude oil delivered to a refiner-seller in a month

in the specified PAD District or Districts pursuant to

§ 212.94 of part 212, the cost of any required purchases

or revenues from any sales of entitlements by that re-

finer-seller shall not be taken into account.

(¢) Exchanges of crude oil. In any exchange of

crude oil in which only quality and location differen-

tials are given effect in the calculation of the exchange

ratio, or in any matching purchase and sale transac-

tion which has the same effect as such an exchange, no

volumes of old oil shall be deemed to have been trans-

ferred. Any volumes of old oil delivered pursuant to

any such exchange or transaction shall be considered

as having been retained by the refiner that has ex-

78a

changed away or sold such volume, regardless of the

volume of crude oil received or purchased by that re-

finer in such an exchange or transaction.

(h) Averaging of crude oil receipts. Upon applica-

tion by a refiner in accordance with the procedures

established under Subpart G of Part 205 of this chap-

ter within twenty (20) days following the close of a

month, the FEA may adjust the crude oil receipts of

that refiner for that month to permit the portion of

such crude oil receipts specified by the FEA to be in-

cluded in the crude oil receipts of that refiner for one

or more subsequent months, if the volume of crude oil

receipts in that month is significantly disproportionate

to the volume of that refiner’s crude oil runs to stills

for that month due to shutdowns or other mechanical

failures resulting in a fifty percent (50%) or greater

portion of that refiner’s refinery capacity not having

been operable for the duration of that month.

(i) Issuance and transfer of entitlements. (1) The

first month with respect to which entitlements shall be

issued is November 1974. The entitlements for the

month of November 1974 shall he issued by the FEA

on January 10, 1975, pursuant to the notice specified

in subparagraph (2) below. As to each month subse-

quent to November 1974, FILA shall issue entitlements

pursuant to a notice published 40 davs after the close

of that month.

(2) Each notice published by the FEA evidencing

the issuance of entitlements under this section shall

specify as to a particular month the adjusted national

old oil supply ratio, the name of each refiner and other

eligible firm to which entitlements have been issued,

the number of entitleinents issued to each such refiner

or other firm, the number of barrels of old oil ineluded

in each refiner’s adjusted crude oil receipts and the

79a

price at which or price range within which entitlements

shall be sold.

(3) No transfer of an entitlement shall be effective

if made to (i) any person other than a refiner, or (ii)

any refiner that is not purchasing such entitlement to

fulfill such refiner’s obligations under paragraph (b)

of this section.

(4) The price at which entitlements shall be sold

and purchased shall be fixed by the FEA for each

month. Such price may be fixed in terms of a price

range in which entitlement transactions shall be ef-

fected or in terms of a single price at which all entitle-

ment transactions shall take place. Such price or price

range shall be fixed by the FEA with reference to the

differential between the weighted average costs to re-

finers of old oil and of new and released crude petro-

leum, imported crude oil and crude oil produced from

stripper well leases.

(5) Refiners and eligible firms shall correet any er-

rors contained in reports filed pursuant to paragraphs

(h) and (j) of § 211.66 by filing an amended report for

the particular month, Based on any reporting errors

so corrected, FEA in its discretion may adjust entitle-

ment issuances to the refiner or eligible firm in a month

or months subsequent to the month in which the

amended report is filed with the FILA, by issuing fewer

entitlements than the number otherwise issuable or by

requiring the refiner or eligible firm to purchase en-

titlements in order to correct for excess entitlements

issued in a prior month or by issuing entitlements over

and above the number otherwise issuable to compen-

sate for too few entitlements having been issued in

such prior month. Amended reports setting forth cor-

rections which would result in adjustments favorable

to a refiner or eligible firm shall be filed no later than

the 28th day of the second month following the month

80a

in which the report being corrected is required to be

filed. Refiners and eligible firms which seek corrections

in their favor subsequent to the two month period al-

lowed for filing amended reports may apply to FEA

for an exception from the provisions of this subpara-

graph in accordance with the procedures established in

subpart D of part 205 of this chapter. All entitlement

issuances or purchase requirements shall give effect to

any differential between the entitlement price for the

month in which any correction is reflected as compared

with the entitlement price for the month as to which

the reporting error was made and such other factors

as the FEA deems appropriate.

(6) Notwithstanding the provisions of paragraph

(i) of < 211.66, eligible firms which failed to report any

volumes of eligible products imported for the month of

November or December, 1974 and which were other-

wise eligible to receive entitlements in accordance with

the provisions of this subpart in effect with respect to

those months may report those volumes of eligible

products on or before February 28, 1975. Any volumes

so reported to the FEA shall be reflected, to the extent

determined by FEA after consideration of such fac-

tors as it deems appropriate, in the entitlement issu-

ances to those eligible firms either for the month of

December 1974 (if the amended report reflecting the

correction has been filed with the FIA by February 3,

1975) or for January 1975.

(j) Failure to consummate transactions. The FEA

may direct refiners that have not purchased the re-

quired number of entitlements under paragraph (b)

of this section for a particular month to pure ‘hase such

required number of entitlements at a price specified

by the FEA from any refiner or eligible firm that has

entitlements for such month available for sale. The

FEA may direct refiners or eligible firms that have

~ Oe es ee Mi ee de, ee ee ek A ee tne Ot eet eo

8la

entitlements available for sale to sell such entitlements

at a price specified by the FEA to refiners that have

not purchased their required nwnber of entitlements

under paragraph (b) of this section.

(k) Certification of old oil by non-refiners. Within

twenty (20) days following each month, commencing

with the month of November 1974, each person other

than a refiner that has delivered crude oil to a refiner

for processing for the account of sueh person pursuant

to a processing agreement in that month shall certify

to that refiner the volume of old oil contained in the

crude vil so delivered to that refiner.

(1) Adjustments to Crude Oil Costs. (1) Computa-

tions. (i) Entitlements purchased. The cost of entitle-

ments purchased in a particular month pursuant to

this section by refiners shall be added to the cost of

crude oil purchased or landed in that month (which is

the period **t’’ (the month of measurement), for pur-

poses of caleulating the increased cost to be applied to

product prices in the following month under the ‘* A‘?

factor of the general formulae of § 212.82(¢)(2) of this

chapter) ; provided, that, to the extent that the obliga-

tion of a refiner to purchase entitlements is reduced by

volumes of crude oil processed by a refiner for a firm

other than that refiner pursuant to a processing agree-

ment, and that the monetary value of that reduced

purchase obligation is used to reduce the processing

fee otherwise payable by that firm under the process-

ing agreement, or is otherwise passed on to that firm,

such monetary value may also be added by that refiner

to its cost of crude petroleum purchased or landed in

that month, but shall be subtracted from the cost of

crude oil purchased or landed in that month by the firm

to which the monetary value of the reduced purchase

obligation is passed on pursuant to this paragraph.

82a

(ii) Entitlements sold. The sales revenues from en-

titlements sold in a particular month pursuant to this

section by refiners shall be subtracted from the cost of

crude oil purchased or landed in that month (which is

the period **t’’ (the month of measurement), for pur-

poses of calculating the increased costs to be applied

to all product prices in the following month under the

**A ''? factor of the general formulae of § 212.83(¢)(2)

of this chapter); provided, that, to the extent that the

sales revenues from entitlements which are issued for

volumes of crude oil processed by a refiner for a firm

other than that refiner pursuant to a processing agree-

ment are used to reduce the processing fee otherwise

payable by that firm under the processing agreement,

or are otherwise passed on to that firm, such sales rev-

enues shall not be subtracted by that refiner from its

cost of erude petroleum purchased or landed in that

month, but shall be subtracted from the cost of crude

oil purchased or landed in that month by the firm to

which the entitlement sales revenues are passed on

pursuant to this paragraph.

(2) Timing. The date of purchase or sale of entitle-

ments for purposes of determining the date on which a

cost or a cost reduction is incurred under § 212.83(¢) of

this chapter shall be the date on which the transaction

is reported to have taken place on the monthly trans-

action report filed with the FEA under paragraph (i)

of © 211.66,

a

el Ne cay i 0

— on

83a

COMPANION CASES

TEMPORARY EMERGENCY COURT OF APPEALS

OF THE UNITED STATES

No. DC-34

Cities Service Company anv Crrres Service Ov. Company,

Plaintiff s-A ppellants,

Guir Om Corporation, Exxon Corporation, Maratnon Ou.

Company anv Hunt Or Company, Amici Curiae,

v.

Fepera Exercy ApMINISTRATION AND FRANK G, Zarp,

Defendants-A ppellees,

and

Asutanp Om, Ixc., Amicus Curiae.

(Firep December 31, 1975)

Appeal from the United States District Court

for the District of Columbia

(Civ. 75-0653)

Before Curistensen, Estes, and Jounson, Judges.

Estes, Judge.

This suit was commenced in the United States District

Court for the District of Columbia by Cities Service Com-

pany and its wholly-owned subsidiary Cities Service Oil

Company (Cities Service), plaintiffs-appellants, to obtain

injunctive relief from all or part of their purchase obli-

gations under the Old Oil Entitlements Program,’ 10 CFR

* Cities Service sought to enjoin the imposition or enforcement

of any entitlement purchase obligations based on its refining more

old oil than the national average or, in the alternative, to enjoin

the imposition or enforcement of any entitlement purchase obliga-

tions based on its refining its own old oil production.

Sta

§ 211.67 (Entitlements Program), 39 FR 42,246 (Dee. 4,

1974), and a declaratory judgment that the actions of the

Federal Energy Administration,? et al. (FEA), defend-

ants-appellees, in promulgating the Entitlements Program

were unlawful on the grounds that such actions were: in

excess of the agency’s statutory authority; arbitrary, ca-

pricious, and an abuse of discretion; not in accordance

with the governing statute; and an unconstitutional bur-

den on the plaintiffs.’

Cities Service based these contentions on its allegations

that the program fails to physically allocate any crude

oil or set the prices for such oil; that Cities Service is

unable to pass through its increased costs under the pro-

gram on a dollar-for-dollar basis as mandated by section

4(b)(2)(A) of the Emergency Petroleum Allocation Act

* Congress established the Federal Energy Administration under

the Federal Energy Administration Aet of 1974, 88 Stat, 97, 15

U.S.C. § 761 (1975 Supp.), ‘‘to assure a coordinated and effective

approach to overcoming energy shortages. .. .’’ 15 U.S.C. § 761(b).

* Pursuant to 10 CFR § 205 Subpart D, Cities Service filed an

application with the Office of Exceptions and Appeals of the FEA

for exception relief from the Entitlements program for purchase

obligations arising out of the erude oil runs to stills made by

Cities Service in November, Cities Service Company, Case No. FEE

1443 (filed 2-7-75, decided 2-20-75), 3 CCH Energy Management

£ 83,043. Subsequently, Cities Service filed an application for com-

plete exception relief from the Entitlements program for the dura-

tion of the regulations’ existence, Cities Service Company, Case

No. FEE 1459 (filed 2-13-75, decided 3-27-75), 3 CCH Energy

Management © 53,100, Both applications for relief were denied by

the FEA. Under 10 CFR § 205.58 and § 205.100(b), a party ag-

grieved by an order issued by the FEA under, inter alia, 10 CFR

$205 subpart D, has not exhausted its administrative remedies

until an appeal has been filed pursuant to 10 CFR § 205, subpart

If, and an order granting or denying the appeal has been issued.

Cities Service filed an appeal from the Febrnary 20, 1975 decision

of the FEA, which was also denied. Cities Service Company, Case

No. FEA 0885 (filed 3-24-75, decided 4-8-75), 3 CCH Energy

Management © 80,568.

Je ee

Da

of 1973, 87 Stat. 628, as amended, 15 U.S.C. § 753(b) (2) (A)

(1975 Supp.); that the classification of buyers and sellers

under the program lacks a rational basis; the program

causes further market distortions; that the small refiner

bias is arbitrary and capricious; that under the program

Cities Service is required to make cash payments to its

refiner-competitors which is not mandated by the Alloca-

tion Act and constitutes an unconstitutional taking of

property for private purposes without just compensation

prohibited by the Fifth Amendment, and that the pro-

gram is an unconstitutional tax prohibited by Article I,

See. 8, cl. 1 of the Constitution.

On July 10, 1975, the district court consolidated the

hearing on plaintiffs’ motion for a preliminary injunction

with a plenary hearing on the merits; denied the plain-

tiffs injunctive relief; refused to certify plaintiffs’ consti-

tutional claims, finding them insubstantial and without

merit;‘ and entered judgment for the defendants. Cities

Service Company, et al. v. FEA, et al. (D.D.C. CA No.

75-653, July 10, 1975), 3 CCH Energy Management

| 26,024. Most of plaintiffs’ contentions were rejected by

the district court for the reasons three district courts had

held that FEA’s Entitlements program was authorized by

the governing statute and the constitutional questions pre-

sented were without merit. Exron Oil Company v. F.E.A.

*Under section 211(c) of the Economie Stabilization Act of

1970, 84 Stat. 799, as amended (Stabilization Act), 12 USC § 1904

note (1975 Supp.), as incorporated into the Allocation Act by

section 5(a)(1) thereof, 15 USC § 754(a)(1) (1975 Supp.), in any

action where the district court determines that a substantial con-

stitutional issue exists, the court must certify such issue for reso-

lution by the Temporary Emergency Court of Appeals. As the

district court stated, citing Delaware Valley Apartment House

Owners’ Ass'n v. U.S., 350 F.Supp. 1144 (E.D.Pa. 1972), aff'd,

482 F.2d 1400 (TECA 1973): “‘[s]uch [constitutional] questions

are not substantial if they are plainly without merit or if previous

Supreme Court decisions appear to foreciose the subject.’’ 3 CCH

Energy Management § 26,024 at p. 26,224.

san

(DN CA ‘ 75.7 ’ | } 1%, »). ' ’ i ’ tion it oy wari thy, ; ] : t] \) ' }

cyl Iris | ! vif i ht \ 4 ( { li emey ries oT TE iz i] | ‘ 1

nt \J ( ‘ . 4 1) ij ; ‘) f / / | ‘ ric | try re ners j | 7 , . { "

(\ \) {)] ( \ : , ‘ ' b.fde tf i] hu re wimMe;rs co le / ‘ | ? ’

Management © 26,015, d lack of jurisdiction prices, rather than fron tie h t)

16 F.2d 13897 (TECA, 1970 CCL Bnet Management 7 nes. Thus, the erent « rity hot '

| ; te

’ yt) ( f ( / f | 1 rs , Cony) roll ad nad 1) ry teed oy i] 0 4 j ]

(W.D.Pa. 1975), 3 CCH Ener Manag t © 26,014, d equal impact on all refiners *° and, contrary to other obj

or lack oO! ull achiction, bd (TECA fix : , ¢} \ Those tion \ et _ ' | ‘ . ’ . | |

Slip Opi on No t) lune MO, Tao Notes It app il (A) (1) econom!l distortion ’ niertleren vith the com

filed in 1 court by Cities Service n July 18, 1975 petitive viability of the small and independent sectors of

Exxon, Marathon, and Gulf, respectively, have filed the petroleum industry, and inequitable prices to consum

briefs in support of ( aa Ser ’s nosition ers developed in certain areas of the country under the

two-tier system due to the var ne reliance of the reo

Cities Service is an integrated petroleum company en graphic region in which they made gasoline and petroleum

ta ced i ery A | Tis orring eny nt rei? ising an } iy ]

raged in pl lucing, tra pol s, ! Pua ind product purchases cn uncontrolled domestic and imported

selling crude oil and petroleum products. A high propo oil

tion of! thy erucde oil Cities Servic refines s its own ‘‘old

Oil nrodnetion 1.0 CT Tet oil the nr Ot wi eh is controlled Seel ng to remedy this situation without los ne the hen

hy the iA fil Hpproy mately B25 under the rwo the r eficial as} ts of the two rer Tl (*; ~\ ' ii? thy | kA rT se)

- ce system, 10 CFR § 212.73.° The two-tier price system mulgated the Entitlement Program.’ The basic purpose

was upheld by this court in a comprehensive opinion di

cussing the validity and effects of the system in Consumer

f rECA Slin Op 10.7. O 4. 197 CCH I I

i 7 Sawhill F.2d rehearing en 0a) (Slip VManacement 7 96.021 at 1, O59 Dur se period Ma

Opinion No. DC-26, July 7, 1975), 3 CCH Energy Man 1972 i. a “he

wement $26,011, vacating 512 F.2d 1112 (TECA, 1975) 51 r, with the pr effect, the major it

ited on] npani had ' ' ld

The two-tier price system effectivel minin ad the I |, had nil I ! t mn? .

flationary impact of rising world-wide oil prices and pro their products than did the small and independent refiners.’ Prior

vided necessary incentives for increased domestic produc to the advent of the two-tier price system, Cities Set had higher

ighted ave rid t in the w hted avera sf

Coat of 7 ( eioinated ¢] ; er pri for all n r refiners; | I reun i 3 1 t ng

' ’ na * I \ 1 tl tion Pro mplementation of U ewo-ties “ a. os tm ; ,

ram. 6 C.F.R subpart L, 38 FR 6 (A , 197 a eS SEREOS is Se SeeepaeTe ot pve te

hes ' tery] | , j \ | ing below it ol ther major nal ft na enenden

{) : ] CFR 12, S t DD iF_R. 1924 lar 15, 1974 refine!

| | ' () he | ral KE: \dmi ty The Entitlements Program originated in a not f proposed

n J 7, 1974, pur ral E y | nistra rulemaking issued by the FEA on Aucust 28, 1974, 39 F.R. 31,650

\ i4, | L. 9 io, SS Stat. 07, lo US. (61 (19% \ 0. 1974 ng h p ie hearings re ld and

ipp over 600 colInmen

of the Entitlements Program was to spread the benefit of

access to old price controlled oil and thy burden of depen

dence on uncontrolled oil among all sectors of the petro

leum industry, all regions of the country, and among all

consumers of petroleum products, while retaining the in

centives for inereased production and anti-inflationary

measures which the two-tier price system provided.

The Entitlements Program essentially requires petro

leum refiners to shift their over-all reliance on controlled

or uncontrolled ou to a more balanced position among all

the refiners. A refiner must, under the Entitlements Pro

gram, have one entitlement for each barrel of old oil which

it refines during any month. The FRA issues a certain

number of entitlements to each refiner each month, based

on that refiner’s proportionate share of all old oil refined

on a nation-wide basis, adjusted somewhat by the small

refiner bias.’ The program thus commenced on the prem

ise that all refiners should be including an equal propor

tionate share of price controlled oil in their refinery runs

each month.

proposed rulemaking was issued by the FEA on November 7, 1974,

39 FR. 39.740 (Nov. 11, 1974), following which the FEA received

over 175 comments on the proposed rule. On November 29, 1974,

the FEA issued the Entitlements regulation in its final form. 39

FR. 42,246 (Dee. 4, 1974

This court has previously stated with regard to a small refiner

that: ‘‘Paseo, a profitable producer-refiner, operating in the pe

troleum industry, must accept its fair and equitable share of the

he benefits of the programs implementing the

Alloeatior Act which the national energy crisis necessitated

Pas Inc. v. FEA, Kod TECA Slip Opinion No, 10-7,

Oct. 14. 1975 CCH Energy Management © 26.051 at p 26 256

The small refiner bias provides additional entitlements to small

refiners in an an int hased "A designated percentage of Ca hy

small refiner’s average dai y volume of erude oil rungs to stills. 39

Sa

Kintitlement purchase obligations are imposed on a re

finery when, on the basis of information supplied to the

FEA, it has been determined that the refiner was running

more old oil as a percentage of its total crude oil refinery

runs than the national average and consequently does not

have sufficient entitlements for all of the old oil it has

refined during that month. Those refiners with less old

oil in their refinery runs than the national average would

receive more entitlements than necessary for compliance,

which they may sell to tiose refiners which have purchase

obligations under the regulations. Thus,

[bly requiring refiners and importers who sell entitle

ments to reduce their erude oil or product costs by

the amount of the entitlement sales proceeds, and al-

lowing a purchaser of entitlements to include the cost

of entitlements in its erude oil costs, the FEA basi-

eally equalized the average weighted crude oil costs

of all refiners, thereby eliminating the inequities

caused by the ‘two-tier’ pricing system.

Pasco, Ine. v. FEA, —— F.2d —— (TECA Slip Opinion

No, 10-7, Oct. 14, 1975), 3 CCH Energy Management

| 26,031, at p. 26,252, rev’g I’. Supp. (D.Wy.Dkt.

No. C75-91, Aug. 27, 1975), 3 CCH Energy Management

" 26,025.

Cities Service contends on this appeal that the Entitle

ments Program is not authorized by the Allocation Act

and is not within the FEA’s authority to allocate and spee

ify prices for erude oil, residual fuel oil and refined pe

troleum products. This contention is based upon Cities

Service’s misinterpretation of Section 4(a) of the Allo-

cation Act and a disregard of the objectives, set forth by

Congress in Section 4(b), which the regulations promul-

gated under Section 4(a) are to achieve ‘‘to the maximum

extent practicable,”’ Cities Service contends that the ob

jectives of Section 4(b) set forth goals to be accomplished

by regulations promulgated under the Allocation Act, but

90a

that those goals do not delegate any power or authority

to the FEA independent of that authority contained in

Section 4(a). It asserts that statutory goals such as ‘‘pro

tection of public health, safety and welfare ... and the

national defense’’ are too broad to constitute a grant of

any authority independent of Section 4(a).

A proper interpretation of the Allocation Act and its

; , ,

provisions 1 juires TRILION ¢ he fact that the author

’ ‘ ] 4 l

mder Sectio must be read rether with the ob

\ hich thy ‘cise of that autl rity Is LO obtain.

As stated by the Supreme Court in Richards vy. United

States, 369 U.S. 1. 11, 82 S.Ct. 585, 591 (1962) : “We believe

iT undamental that a section of a statute should not be

end olation from the Context of the whole Aet. . 9

In Mastro Plastics C yy} ration v. National Labor Rela

fon Board, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309

1956). the Supnres e Court, in interpret ne Section 8(d) of

+] Nat » | I aly? Relat Orns \et.a amended, rejected **a

narrowly literal construction’’ of the statute and stated:

the ahove words are read in eomplete isolation

their context in the Act, such an interpretation is

wossible. Llowever, ‘‘In expounding a statute we must

nicl dobwv 3 . iwle sentence or meimnber of a

ntence but look to the provisions of the whole la

ind to its object and poliey.”’ I"nited States v. Bois

yre’s Hei U.S.), 8S How 113, 122, 12 L.led. 1009,

300 U.S. at 285, 76 S.Ct. at 359, 160 L.Ed. at 321. NLRB,

Lion Oil Co... 342 US. 282. 288. 77 S.Ct. 330, 1 L.Ed.2d

837 (1957): Allied Chem. & Alkali Whrs. vy. Pittsburgh

id (il ('o., 404 U.S. 157, 185, 92 S. Ct. 383, 400, 30

] 1 }

’ “7 a

Pict i I

'>

{

l li ive }

— C

hmeyve ; |

\

|

ig 1 with the

ri ! Section 7602 of the In

(‘oc }o° rizes the Internal

IRS) te rye to further its tax

| }

rp | r consis

it} rity » ¢ bre | tig OT 1)

Lon res under S n (O01, In orde

purpose oO ho ! wuries [’; ted

)/ YTS. B , (1975)

1) ito st ment of the Committee of

\lloecation Aet, Confer Report 95

628, 2 U S. Code Cor or, & Ad. News, 05 ¢ ‘one... Ist Sess. ZOSS,

2689. the ( tee stated: “The President is intended to

have full fl e and efh

people re Lin Section ’ Thus, the alloeation and

iin li} iT \ _ TloO}r ) V1 hout vitality un

, } ‘ } } oO } ‘ ; ‘ ve ‘ laet to th, ob

ives of: ss 1) 1) )

Ni || | n nui rl] f mice red bv Con-

vres s | dl I he } ng author

7 \ “( | ? | ( } ; \ { «>? erenes }? | prt 7 ~

The on ttee | led to coun price

( | llocati hority so to

oc ’ iking authorit nd respon

7 v to? rat yiiy he al ort ituation

C‘ongress intends to force the Adininistration to ration

and ha (oT) hie ) mol ¢ ile it ’ F fy |

th the objective of the Economie Stabilization Aet.’’ Con

rence | port Jo-bUs pra, 2 | S. Code Cong. & Ad.

Vev Od Ce Ist Sess, JOSS, 2702. Therefore, plaintiff's

ister 1] the bifurcation of the authority conferred

Ov thy eke \ rricle r Section L(y) tro 1} thre ohiectives of ih),

1 thei r to assert the lack of specific authority

ni! \lloe, on cet for the | tle; ents Program, 1s

unwarrante

—

‘

}

and unreasonable. The Kntitiems nts Program

92a

is clearly within the authority conferred on the FEA under

the Allocation Act.”

Cities Service further contends on this appeal that the

Mntitlements Program, 10 CFR § 211.67, as promulgated

by the FEA, violates Section 4(b)(2)(A) of the Allocation

Act by failing to provide Cities Service with an effective

means of passing through its costs resulting from the kin-

itlements Program on a dollar-for-dollar basis. The Allo-

eation Act. under Section 4(b)(2)(A) mandates that the

FEA, in promulgating its regulations, provide a dollar-for-

dollar pass-through of net increases in the cost of erude oil.

The FEA has responded to this mandate through 10 CFR

219 83(¢)(2). Under this regulation the eost of entitle-

© While it is not necessary to go further in finding authority for

the Entitlements program, we note that in Pasco, Inc. v. FEA,

supra, 3 CCH Energy Management at p. 26,258, n, 21, this court

stated that: ‘‘[t]he Committee Reports of the Senate and Ilouse

are quite enlightening on the FEA’s authority to promulgate the

Entitlements program.’’ During its consideration of the first exten-

sion of the Allocation Act, a Senate Committee stated that the Allo-

eation Act

provides ample authority for the F.E.A. to institute a system

of price equalization to provide that all segments of the indus

try benefit from lower-priced domestic oil. The Committee was

urged to amend the Act to achieve this objective but has been

assured that F.E.A. intends to institute a price equalization

program under existing authority in the immediate future.

S. Rep. No. 93-1052, Comm, on Interior and Insular Affairs, 93d

Cong., 2d Sess. at 2 (Aug. 9, 1974

Further. a House Committee Report, issued two months later,

clearly indicates the FEA’s authority

to institute a system of price equalization applicable to crude

oil. residual fuel oil and refined products to eliminate the re-

gional and competitive inequities which result from a depend-

ence upon high-cost imported oils and petroleum products. The

F.E.A.’s stated commitment to Subcommittee Chairman Mac-

donald during the hearings on this bill to move promptly on

a price equalization program has convinced the Committee

93a

ment purchases and the revenues from entitlement sales

must be added to or deducted from the cost of crude oil

purchased or landed in that month, for the purposes of eal-

culating the increased cost to be applie d to product prices

for the following month under the ‘‘ A+” factor of Section

212.835(¢)(2), which is the general product pricing formula.

Cities Service argues that because it has certain banked

!

;

i

costs which it was unable to pass through in earlier months

prior to the promulgation of the Entitlements Program, it

cannot now pass through its entitlements costs due to the

current passing through by Cities Service of these former

hanked costs. The FEA pass-through 1

vulation provides

that specific amendments to the Aet te

may prove to be unnecessary.

compel such action

H. Rep. No. 93-1443, 93d Cong., 2d Sess. at 3 (Oct. 8, 1974

Cities Service contends that such legislative reports are ‘‘sub

sequent legislative history’’ such as are proscribed by the Supreme

Court in Regional Rail Reorganization Act Cases, 419 U.S. 102, 132

1974). The Court there stated, ‘“post-passage remarks of legis

lators, however explicit, cannot serve to change the legislative intent

of Congress expressed before the Act’s passage.’’ However, in this

case the Allocation Act was directly before Congress by reason of

the expiration of the Act and the necessity of ext: nding its provi

sions as Congress saw fit. Therefore, the above reports are con

temporaneous with the Act’s extension and, further, the remarks

are not being used to indicate any different legislative intent, but

rather that intent expre ssly found by a contemporaneous construc

tion of the Act by the agency charged with administering it

Courts give great deference to the construction of an Act bv the

agency charged with administering it, and hence where Congres

sional intent congruous therewith is found to have been expressed

not subsequent to the Act’s passage but contemporaneously with

the Aect’s renewal, its pertinence to the court’s task in adjudging

the agency Ss exercise of auth rity under the Act is clear See. gen

erally, Udall v. Tallman, 380 U.S. 1 (1965); Pacific Coast Meat Job.

Ass’n, Inc. v. Cost of Living Coun., 481 F.2d 1388 (T.E.C.A. 1973

University of Southern California v. Cost of Living Coun., 472

F.2d 1065 (T.E.C.A. 1972)

94a

for the pass-through of costs other than those derived from

the Entitlements Program." However, Cities Service has,

during the first four months of 1975, passed through under

this regulation costs totaling more than their $23.9 million

of entitlement purchases ineurred over the same period of

time’? Whether or not the inereased costs which Cities

Service passed through were banked costs or entitlement

costs, the FEA pass-through regulation is clearly effective

for the purpose for which it was promulgated.’* Whether

or not Cities Service passes through its entitlement costs

in the month following their purchase, or in a much later

month, depends on business judgements which Cities Serv

ice must make. The Allocation Act does not guarantee that

all increased costs will be absorbed by the market place

without any change in the market shares of the respective

companies when they pass through such costs under section

4(b)(2)(A); rather, the Act merely mandates that an op-

portunity for the pass-through of such costs be provided.

This the FEA has done, and this court holds that the En

titlements Program does not violate section 4(b)(2)(A) of

the Allocation Act.

* Under 10 CFR § 212.83, a refiner’s increased product and non-

product COSTS may be ineluded to the extent provided in 212.83,

f base prices and allowable

in the computation under § 212.82 «

prices in ePXACOSS of the hbase prices for eovere (| produets,

‘= See lk’ inding of bac t Numbe r 25. Citi s Se rvice ws FE A ar

KF Supp. —— (D.D.C. CA No. 75-653, July 10, 1975), 2 CCH

Energy Management {26,024 at p. 26,221.

‘The district court did not, as appellant erroneously contends,

premise its finding that Cities Service had failed to show that it

eould not recover its entitlement purchase costs from the market

place on the conelusion that every dollar Cities Service recovered

during the first four months of 1975 constituted a recovery of en-

titlement purchase costs. The district court found that during the

first four months of 1975 Cities Service was passing its increased

costs through under 10 CFR § 212.83 and thus a mechanism was

clearly available by which Cities Service could have passed through

its entitlement purchase costs if it had chosen to do so,

95a

Cities Service furth

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